Afghanistan Legal Lessons Learned: Army Rule of Law Operations

• Author: Eric Talbot Jensen - Amy M. Pomeroy
• Position: Judge Advocate, US Army - Student, Brigham Young University Law School serving as a Legal Intern, International Law Branch, Office of The Judge Advocate General, US Army
• Pages: 465-482

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Afghanistan Legal Lessons Learned:

Army Rule of Law Operations

Eric Talbot Jensen and Amy M. Pomeroy*

In2002, the White House published the National Security Strategy. Rather than

focusing exclusively on military operations, the strategy is comprehensive and

recognizes that acts ranging from poverty reduction to disease eradication will

contribute to America's national security. However, one of the most crucial com-

ponents ofthe National Security Strategy which will impact virtually all other com-

ponents is the worldwide implementation of the rule of law. 1In furtherance of the

National Security Strategy, National Security Presidential Directive 44 was issued

in late 2005 and states that it is US policy to work with other countries toward effec-

tive implementation of the rule of law.2The directive tasks the Secretaries of State

and Defense with coordinating rule of law efforts and with integrating them into

military contingency plans. Consequently, by direction of the President, the mili-

tary has akey role to play in implementing the rule oflaw and judge advocates (JAs)

must be prepared to lead these efforts.

*Lieutenant Colonel Eric Talbot Jensen, Judge Advocate, US Army, and Amy M. Pomeroy,

Student, Brigham Young University Law School serving as aLegal Intern, International Law

Branch, Office of The Judge Advocate General, US Army. The views expressed in this article are

those ofthe authors and not The Judge Advocate General's Corps, the United States Army or the

Department of Defense.

Afghanistan Legal Lessons Learned: Army Rule ofLaw Operations

Commanders look to JAs with the expectation that they will be competent and

innovative in implementing the unit's rule of law mission.3This is clearly demon-

strated by the Center for Law and Military Operations' publication of the Rule of

Law Handbook: APractitioner's Guidefor Judge Advocates (Rule ofLaw Handbook) ,

where a"constantly re-occurring theme" is that "the command naturally turns to

the legal expert within the task force to plan, execute, coordinate, and evaluate rule

of law efforts."4

Over six years of operations in Afghanistan, during which commanders have re-

lied on JAs in their rule oflaw operations, have created anumber oflessons learned;

this paper will highlight three:

•Rule of law operations must be totally integrated into all phases and aspects

of military operations and the unit mission;

•US Army rule of law efforts must be completely coordinated and

synchronized with other rule of law efforts, especially those of the host nation, and

must recognize what role the military is organizationally qualified to fill; and

•Military rule of law operations must be effects-based.

Before addressing these lessons learned, it is important to highlight the discus-

sion surrounding the definition of rule of law. There are divergent, and often con-

flicting, views among academics, US government agencies, US allies and even

within the Department of Defense, on what is meant by the rule of law.5This defi-

nitional ambiguity allows two organizations or individuals to be deeply committed

to accomplishing rule oflaw tasks, yet proceed in diametrically opposed directions.

Additionally, it is important to discuss the obligation that international law cre-

ates to conduct rule of law operations. Recent court decisions such as those of the

United Kingdom's House of Lords in Al-Jedda,6the European Court of Human

Rights cases from Kosovo7and Canada's Amnesty International v. Canada8have re-

lied on Security Council resolutions to determine the substance and extent of legal

obligations imposed on armed forces. The United Nations Security Council has

signaled through several resolutions9that supporting and promoting rule of law

initiatives are not only permissible, but are obligations that participants in armed

conflict are required to fulfill. It is incumbent on US forces to be aware of these

emerging practices and recognize that these obligations will likely follow any

armed conflict, whether brought on by reason of occupation or some other theory.

With international law imposing additional obligations to carry out rule oflaw op-

erations, it is more crucial than ever to catalogue lessons learned, analyze their ap-

plication to doctrine and ensure that the US military is conducting its rule of law

operations appropriately.

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