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Appendix J
Legal Considerations in Counterinsurgency

GENERAL

J-1. Leaders should remember counterinsurgency operations must conform to the law and the application of the law varies depending on the overall counterinsurgency mission. Leaders maintain constant awareness of their ability to lawfully use certain tactics, weapons, or procedures, and understand that there are various agreement or treaty obligations that have counterinsurgency operational implications. Judge advocates assist leaders in tackling the complexities of the law and in integrating legal considerations into the overall pattern of counterinsurgency operations.

LEGAL BASIS

J-2. Leaders should know and understand the legal basis of their operations. By doing so, leaders promote the legitimacy of their operations and are able to better plan their missions, structure public statements, and conform their conduct to policy. Further, since the very goal of counterinsurgency operations is to help maintain law and order, those conducting counterinsurgency operations must know and respect the legal parameters within which they operate. Those who conduct counterinsurgency operations while intentionally or negligently breaking the law defeat their own purpose and lose the confidence and respect of the community in which they operate.

J-3. The legal basis of counterinsurgency operations derives from many international, US, and local/HN legal sources. These sources may be UN Security Council resolutions, regional and international agreements, and decisions, regulations, and orders from US, multinational, or local/HN authorities. While legal sources differ depending on the specific mission (counterinsurgency in an international or internal armed conflict) and military role in mind (lead or in support), counterinsurgency mission statements drafted with these sources in mind demonstrate and encourage adherence to law and order.

LAW OF WAR PRINCIPLES

J-4. All counterinsurgency operations comply with law of war principles to the extent practicable and feasible. Some of the basic law of war principles to which counterinsurgency operations must conform include the following.

PROVIDE HUMANE TREATMENT

J-5. Regardless of the legal status of those persons captured, detained, or otherwise held in custody by US Soldiers, they receive humane treatment until properly released. They are provided with the minimum protections delineated in the Geneva Conventions.

AVOID CAUSING UNNECESSARY SUFFERING

J-6. Weapons, munitions, and techniques calculated to cause unnecessary pain and suffering are forbidden.

NO TOLERATION OF VIOLATIONS OF LAW OF WAR AND HUMAN RIGHTS

J-7. Orders to commit law of war and human rights violations are illegal. Soldiers must disobey them and report all known or suspected law of war and human rights violations. Those who violate law of war and human rights will be held responsible for their actions.

STATUS OF FORCES

J-8. The nature of the conflict (internal or international armed conflict, stability operations, support operations, peace operations) dictate the legal status of forces. When US forces conduct counterinsurgency operations in another nation without that nation's prior consent, the US law applies. However, if US forces conduct counterinsurgency operations in another nation's territory with that nation's prior consent or invitation, in the absence of some type of grant of immunity Soldiers must comply with that nation's law. As a result, leaders conducting counterinsurgency operations in this environment should understand in detail the extent and effect of any relevant HN criminal, civil, and administrative jurisdiction. A status of forces agreement or similar understanding between the United States and the HN may resolve many of these matters and prevent them from adversely affecting counterinsurgency operations.

CLAIMS

J-9. Injuries, death, and property damage are an unavoidable reality of military operations. The leader's ability to promptly and thoroughly redress meritorious claims against the United States will pay considerable dividends in maintaining a community's confidence and respect. Several statutes and agreements determine whether and how claims against the United States may be adjudicated. In some situations, claims against the United States may not be adjudicated, but payments in sympathy or in recognition of a loss (solatia) may be made. Multinational partners may be able to adjudicate claims that US law does not recognize. In all circumstances, leaders planning counterinsurgency operations should consider that the prompt and effective handling of resultant claims fosters good will and positive civilmilitary relations.

FISCAL LAW

J-10. US legal principles on the proper expenditure of public funds apply to US forces, even when they are part of a multinational force or supporting multinational operations. Fiscal law affects training, humanitarian and civic assistance, construction, medical care, transportation, maintenance, the logistics civilian augmentation program, and other activities. Requests for support may come from the HN, US agencies, multinational partners, local civilians, international military headquarters, higher headquarters, and other sources. Leaders in counterinsurgency operations must be prepared to find the correct funding authority and appropriation for the mission and specified tasks to be performed, articulate the rationale for proposed expenditures, and seek approval from higher headquarters when necessary.

CONTRACTING AND ACQUISITION

J-11. Leaders may have to acquire goods and services and carry out construction projects while conducting counterinsurgency operations. The significant legal issues involved in battlefield acquisition, contingency contracting, or acquisition and cross-servicing agreements present challenges that demand creative analysis. Lawfully conducted, confiscation, seizure, and requisition of property, and use of the local populace as a source of services may be valuable means to support the needs implicit in counterinsurgency operations. However, even when lawfully done, there are practical considerations in acquiring supplies and services from the local populace that may negatively affect counterinsurgency operations. The key to successful contracting and acquisition is the proper training and appointment of personnel who are authorized to carry out pertinent actions and know the legal and practical limitations on their authority.

FOREIGN GIFTS

J-12. Besides the practical and political considerations involved in receiving and accepting foreign gifts, leaders should remember the legal implications. As a general rule, Soldiers are prohibited from soliciting gifts from foreign governments. Depending on the circumstances, Soldiers may be prevented from accepting gifts from foreign governments altogether. There are several statutory limitations on the type of gift and the gift's value that leaders should consider prior to accepting any foreign gift.

INTELLIGENCE LAW

J-13. Leaders conducting counterinsurgency operations probably consider their ability to conduct intelligence gathering as critical to their success. Counterinsurgency intelligence collection, information gathering, and counterintelligence operations involve substantial contact with sources from nongovernmental organizations, the local populace, and multinational partners. There are many legal implications in collecting intelligence or gathering information from these sources. There are also legal restrictions on intelligence collection against US persons, on disseminating intelligence to other agencies and in using special collection techniques, such as electronic surveillance. The complexities of intelligence law require leaders to obtain legal review of all proposed intelligence activities.

LAW AND ORDER

J-14. Maintaining law and order throughout the HN is part of the desired end state of counterinsurgency operations. The following contain essential enforcement and detention operations information:

  • Policy on treatment of detained persons.
  • UCMJ.
  • Military tribunals/commissions.
  • MEJA (jurisdiction over contractors and private security firms).
  • HN authorities (Article 98 agreements).
  • Evidence collection and war crimes.

WAR CRIME DISCLOSURES AND THE HANDLING OF EVIDENCE

J-15. In recent years it has become necessary for Soldiers to be aware of the possibility of incidents that could constitute war crimes. The development of international judicial agencies to deal with allegations of war crimes makes the issue of providing evidence an increasingly difficult and complicated process. Expert policing, pathological, and forensic skills are essential in gaining evidence that could lead to successful prosecution.

J-16. Military police forces are the most appropriate Army agents for dealing with such incidents that could have important international significance. Military police resources should be called upon immediately when such incidents or disclosures are discovered. Where a Soldier or civilian working with Army forces is suspected of committing a war crime (and indeed any crime) military police carry out the formal investigation. Where a HN national is suspected, the procedure to be adopted depends upon the theater involved. Usually it will be for the local HN civilian police organization to investigate, albeit with assistance from the military police or multinational police mission. Theater-specific procedures should be clearly understood prior to deployment, with advice being sought from Army legal services if need be. The guidance below provides a few basic procedures likely to be common good practice in circumstances where involvement by non-military-police Soldiers is necessary.

GUIDELINES ON HOW TO DEAL WITH CRIME SCENES

J-17. In general, two kinds of suspected crime scenes occur. There are sites where bodies are present, and there are sites where destruction of property has occurred. Certain basic common procedures are recommended for both categories of sites. More specific actions with regard to each kind of site can be recommended after these have been dealt with.

AIM

J-18. At whatever kind of site actions are taken for recording or preserving evidence, the ultimate goal is to collect evidence admissible in a court of law. To a large extent, the basic principle is that whatever actions are taken should be clearly documented. The precise conduct of the investigative actions should be noted and recorded. If the history of the investigation is not clear, it opens the way for challenging the reliability of evidence. J-19. In dealing with physical pieces of evidence, it is imperative to create an evidentiary chain that starts at the site of the investigation and will ultimately end in court upon production of the evidence. The chain consists of clearly documenting the collection, handling, processing, and storage of potential evidence at all stages. Upon submission of a piece of evidence in court, the precise trail of that evidence must be traceable directly back to the site of the investigation. Any break in that chain may result in that piece of evidence being ruled inadmissible at trial.

BASIC PROCEDURES

J-20. The following actions are recommended for the recording and preservation of evidence at all categories of sites:

  • Make a photographic/video record of the site.
  • Make a detailed report of all observations at the site.
  • Make sketches and diagrams if possible.
  • Record measurements and distances where appropriate.
  • Record the details of any witnesses to the events before they disappear.
  • Record details of any surviving victims.
  • Record any details or information on the identity of the alleged perpetrators (names, descriptions, and insignia or uniforms worn).

J-21. Be prepared to make your own witness statement describing in detail your involvement, be it as a witness to an incident or upon attending the aftermath.

J-22. The particulars of those persons undertaking the above activities should be clearly documented. It should be clear who these persons are, in what capacity they were acting, and where they can be traced.

J-23. It is important to safely preserve all evidence and material collected until the arrival of an investigative or prosecuting authority. This entails keeping the evidence and material in such a manner that it cannot be tampered with or contaminated. The evidence and material should be essentially kept under seal until it can be handed over to the appropriate investigative or prosecuting authority.

SITES INVOLVING BODIES

J-24. It is important to establish the cause of death and to identify the deceased if possible for the investigation of a scene where dead bodies are present. Undertake the basic common procedures described in the previous paragraph with this in mind. Important, therefore, are matters such as:

  • The number and position of bodies.
  • Are the bodies manacled or blindfolded? Are there bruises or swelling around the wrists or ankles indicating a person might have been bound prior to their death?
  • Are there any indications of a battle? For example: are the bodies uniformed? Are they armed? Is there battlefield debris--such as equipment, munitions, boxes, or binoculars--in the area near the body? Are there any blunt objects or tools with blood debris on them?
  • Can any injuries be identified? Was the person shot, stabbed, strangled, or crushed? Is blunt trauma evident anywhere on the body?
  • The clothing on the bodies (often identification can be done on the basis of the clothing). Civilian casual, work, business, or formal wear? Necktie, dress, or scarf present?
  • Documentation found on bodies (or at the site). Identification tags?
  • Jewelry or other items found on the body (or at the site). Earrings?
  • Is any physical evidence present that could indicate the cause of death? Bullet casings or weapons?
  • Are there any bloodstains or splattering visible on furniture/walls? Any stains should be protected because they provide information to forensic experts.

J-25. If possible, a pathologist should conduct a postmortem, with a view to determining the cause of death and the identity of the deceased.

J-26. In some instances, the next of kin of persons killed in the conflict may want to retrieve the bodies of their loved ones for burial or cremation. Once a site has been found, it is likely that very little time will be available to record evidence at that site. Especially where a formal investigation has not yet been sanctioned, it may be very difficult to delay handing over the bodies to next of kin. As it may not be possible to seal off a site with a view to proper examination at a later stage, it is important that as much information and evidence as possible be collected at such sites. Frequently, however, it will be appropriate for the troops first on the scene to set up a cordon so that potential evidence is not interfered with prior to the arrival of the investigative authorities.

SITES INVOLVING DESTRUCTION OF PROPERTY

J-27. The main object of investigating sites of destruction is to determine the cause of the destruction and identify the perpetrators. The cause of destruction is often a matter of observation. (For example, was the cause burning, artillery fire, or bombing?) The data the observation is based on must be thoroughly documented, along with any additional evidence that may be found that could substantiate the observation.

SCREENING AND INTERVIEWING WITNESSES

J-28. During the process of identifying and recording potentially valuable evidence for use later in a criminal prosecution, a two-phase approach can be adopted.

  • Undertake a wide screening of potential witnesses initially. The purpose of this is to identify persons who can give direct, first-hand, evidence with regard to events that may fall within the jurisdiction of the tribunal.
  • Investigators should take detailed statements from those witnesses who have been identified during the first phase as being able to give direct and relevant evidence pertaining to events relating to the investigations.

PHASE I INITIAL SCREENING

J-29. This phase is undertaken at the outset of the investigation. It serves to provide the investigators with some idea of the amount of information potentially available, and its quality and consistency. It helps the investigators focus their attention on the events they are investigating, and identify direct witnesses to relevant events. Apart from identifying witnesses who can give direct evidence, detailed biographical information concerning those being interviewed (with a view to tracing persons in the future) must be collected during this phase as well. It should be borne in mind that it might not always be immediately apparent during this phase whether information being provided will be relevant to investigations of subsequent trial proceedings. Good biographical information will therefore facilitate the locating of persons who are immediately identified as eyewitnesses, as well as those who are only identified as relevant witnesses at a later stage.

Biographical Information

J-30. Obtain as much biographical information as possible from the witness. This includes the following: Comprehensive personal details. Full details of relatives. Full details regarding where the person lived during the conflict. Full details of where the witness intends to go in the future. Any other contact details such as phone numbers or email addresses.

Identifying Witnesses

J-31. During this first phase it is worth the effort to establish whether the individual to be interviewed is able to relate events that fall within his or her own direct knowledge or is simply relaying events that he or she has been told about by others (hearsay).

J-32. It should be borne in mind that persons being interviewed are likely to be traumatized by recent events that they have personally experienced, but which may not necessarily be relevant to investigations. In the desire to speak out about what has been experienced or vent outrage and frustrations, interviewees are prone to rely heavily on information obtained second- or third-hand. Such information is generally not reliable with a view to ultimate prosecution of criminal cases before a court. Such people may still be of use, however, as they may be able to provide the details of a previously unknown persons who are able to provide direct evidence. The time spent on clearly establishing whether a person is indeed a direct witness to relevant events (or potentially relevant events) is, therefore, an investment in the future of the investigation and may ultimately save considerable time and resources at a later stage.

PHASE II TAKING STATEMENTS

J-33. Once a potential witness who possesses direct information has been identified, a comprehensive statement should be obtained from that person. The statement should include the following information in as much detail as possible:

  • Full particulars of the incident or event (in terms of what the witness saw, felt, heard, or experienced).
  • Full particulars of the time and place of the event.
  • Particulars of the weather and lighting conditions, and distances or measurements if relevant. (Diagrams or drawings by witnesses may prove useful.)
  • Details of other witnesses.
  • Details with a view to identification of alleged perpetrators: name, uniform, unit, and description.
  • Details about which a witness is likely to be questioned in court, such as whether he or she had been drinking alcohol prior to the incident or whether he or she has any loyalties to, or grudges against, any of those about whom he or she is giving evidence.

Formats for Statements

J-34. The format of the statement depends to a large extent on the evidentiary requirements of the tribunal ultimately responsible for trying any cases emerging from any investigation. Where the tribunal has not been determined, the format is at the discretion of the head of the investigation.

J-35. Whichever situation pertains, careful consideration should be given as to whether it is necessary to require witnesses to sign or attest their statements. While the immediate advantage is the perception that the witness personally agrees with what is contained in the statement, there is also a disadvantage. The problem is that, should the witness make later statements that appear to contradict or conflict with that earlier statement, this could compromise his or her credibility. An alternative approach would be to not require the witness to sign the statement, but simply to rely on the investigator's notes of the interview. The drawback with such a procedure is that it is less likely to be admissible as evidence of the witness's version of events if he or she dies or cannot be located.

Continuity of Evidence

J-36. One of the primary roles of overt surveillance is to provide detailed information, in the form of sightings, for local police and other agencies to use in their attempts to cause attrition to the insurgent organizations. This information could potentially be used as evidence in a court of law to secure convictions. Soldiers on surveillance duty must therefore be evidence-aware to ensure that opportunities from which convictions could arise are not missed because of errors in evidence continuity or information handling by the observation post (OP) team.

Types of Evidence

J-37. Information gathered by OPs can be recorded in a variety of formats, such as--

  • Written.
  • Photographic.
  • Video.

Written Evidence

J-38. There is a number of types of written evidence that could be produced by an OP, the main ones being:

  • Log sheet.
  • Patrol notebook.

Photographic Evidence

J-39. It is important that the film number and frames used be correlated with the sightings entered in the log if it is believed photographic evidence has been captured of an event or incident. The film should be left complete inside the camera body and the whole package handled as evidence.

Video Evidence

J-40. Video evidence can be extremely useful, provided that the tape has been correctly accounted for. There are a number of considerations that should be taken into account.

J-41. The date-time group display on the camera must be correctly set and visible on any tape recording. The time on the video monitor is the time to be used on all log entries. The VCR tape position counter should be zeroed at this time and also used as a reference in the log. These procedures ensure that any video evidence is coordinated with written evidence.

J-42. For full continuity of evidence, any sequence of video footage should be supported by complete coverage of that day, up to and including the event. This is possible to achieve using 24-hour time lapse VCRs, so that a complete 24-hour period is recorded onto one tape. This then provides continuity. OPs should ensure the VCR is switched to 3-hour mode to improve the quality of the recording when recording an event of interest.

J-43. These continuity tapes should be continuously recording while the OP is operational. They should be changed over at midnight, logged, and stored. The formation headquarters directs the time period of storage and method of handling.

J-44. If an OP captures some vital evidence on film or video, then it must deal with it in the correct manner in order for it to have any value in a court of law. This involves the use of an evidence-handling kit and procedures.

Evidence Handling Kit

J-45. A suggested evidence handling kit to be kept in OPs is--

  • DA Form 4002.
  • A sturdy, opaque bag or envelope.
  • Self-adhesive labels.
  • Cellophane tape.

Handling Procedure

J-46. Record all markings on the film/tape, whether operational serial numbers or the manufacturer's. These should be written on the DA Form 4002. Place the tape or film into a bag or envelope and seal all edges with tape. Tape the DA Form 4002 onto the evidence package and only sign the statement section on the form when the evidence is handed over to the police or other agencies as authorized by the formation headquarters.



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