Civil Affairs-A Suggested Legal hppmach

Author:Major Havold D. Cunninpnam. Jr

On 9 June 1969, the Commanding General U.S. CONARC announced that the deletion of the term "military government" had been approved by the Department of the Army.' Thia development had been anticipated, but its realization had been resisted.2 The initial reaction of lawyers, military and civilian, when informed of this change haa been one of protest.8 It is felt that

'The o~lnlonland OOnOlusions exnressed helein are thaae of the Luthol and

do not nsce9Parily repreaent the ~ i e i s ol The Judge AdvoOate Qeneral'a School

01 m y other governmental amno?.

**B.A., LLB, LLhI, BCL (Oxan.): Member. Staff and Faeult?, The Judge Advocate General's School, US. Army, CharlotfeeTlllB. Va.; member of the Masmehussffii Bar, rhe Bars of the Untfed Sfatel Court of blllilary Appeals and the United States Supreme Court, formerly legal InitTYctol, U.S. Arm? Clril AUairs School, Fort Gordon, Ga.

1 ''1. The ellmination of the term 'hlilitary Government' tram US. Arm? termlnolags has been BYproFed by the Dewrtment of the Army. Thll Drorides the aufhorlty to delete the term 'hllllfary Government' from the overall Ciril Affairs hIllifal(y Government Lunetlan. This deolslon was based on the fact that the term has an Unpleasant connatatlon to free people, espeelally o w BurnDean allles. end that It 1s doubtful 11 the 0.5Army nil1 ej.81 and It Leas!hle OT PraCtim.1 to assume the degree of Dmtml the term impl1ea.l'

Ltr. Ha. CSCOSARC. Fort Monroe, 71.. Subject: "Sea Tltle for Clvll Affairs Millfary oarernment?' File: ATTSG-DIR 312.7/&2 18 June 1959).

'Earller. the Clrll Man3 SOhool had been asked To conslder io lis doctrinal atvdy of the Theater Army C:rll Affarrs Command, ahether the term should be deleted and had recommended against any change. See letter U.S. Army War

College, Carlidle Barracks. Pa., SubieCf: "DoOtrinal Study on the Theater Army CAMQ Command (U)? Flle' AICWCF (6 January 1859). UnnumDeied Gfudy Pra

lnek Commond. 1 April 1969. Drepared by the U.S. Army Civil An& Fort Gordon, Da. A later ifudy by the Clvll Affairs School did inooiporate th8 Ohange In doetrme. See Flnoi Dmif Report, Cnaumtoied Study PToleCt. DOC-irinal Bludy 0% the Theoter Army CiLZi Anorir Command, dated 16 August 1969, p 2, U S Army Cwll Aifalrs School.

'Mr Eli Nobleman, Dast president 01 the !&litary Garernment Aasoolatlon Inaddressing the lrsf clsss to take a Dourse, reoently inaugurated at The Judge Adraoaf8~General's School, Charlotfesnlle, VB., to tram lan.:ers Oonemned wlth elvil ailalrs, lntlmated that that amoelatlon's name vlll remaln unchanged despite the deletlan ai the term "mllltary gDYernmenf" from Armi dootrlne.

the term "military government" has an established meaning in international and municipal law of which lawyers must take account in rendering opinions on the legality of official action.' This, of course, is true, but the military lawyer is now faced with a fait accompli,6 and he must find a new orientation, a new perspective from which to evaluate the legal incidents of the civil-military relation because his clients will not be satisfied with advice couched in terms expressive of the former usage and because, in a larger legal context, older concepts may lack jural consistency.

It is the purpose of this essay to suggest such a perspective. The reader must be willing to make a shift in the emphasis of his thinking or the orientation herein proposed will not be meaningful. This is said by way of caveat for this approach to the legal basis for civil affairs will appear strange to the lawyer accustomed to thinking in terms of concepts having stable and predictable meanings.

By way of background, it should be mentioned that the deletion of the term military government was not accomplished as a result of a lawyer's suggestion. The seeds of this doctrinal change were sown, it is submitted, in a penetrating analysis of the civil affairs activity-prepared by a gifted scholar whose forte appears to be public administration rather than law.8 Mr. King argued :

In each and every er3er:ence the degree ol control we ererclzed was determined, mt by the Status ai the tenltory-whether It n'as "llberated or "aecupm-but by the exmenee o? absence of an acceptable and effec-tlve local government In Germany, u:th local ~orernment m~tltutlons whmm orlgini were dew In the Nlddle Ages, and which neYel ceased to L~n~fionuntil we told them to cease. %e bund the Em'ernment unacceptable and liquidated it. Elrerhere. ahether In ex-enem? and eo-bell!gerenr Italy, In Droitiafe France, our ally, 01 in lnaxperieneed Korea, ve engaged In

~- *Prof B a r t ~ ~ 01 the Harrard Law Scbaal. wrote the author Dorntedly as

. . ,. . .


"mllltary gweinment" wherever It l a b neeesiar~. though in France r e deemed if eiyedienf to employ another term far it.

The leiisan ol all thli erDer.ence LI that the dlatln:tlan between "mhtary bolemmenv and aomethlng else 1'181 18 'mllllsry" but not ''garernmenf.'' Is not one that can be made solely as between lrlcnd and enemy, ITe pm'ed ne could w e m1llta:y goieinment BI a tool of reform-some would Say retrrhutlon--ln those accupled areal ahere locsl authorltles did not measura UP to our standards. But x e also found we lion to use If in ofher meas for whaae ~eaplene had only the mom eornpil3alonafe ferlmgs'

Using this approach, ilk.

King was led to evaluate civil affairs in terms of a new dimension. No longer should it be linked with the term, "military government" or thought of in the ambiguous sense in which it vaB used in successive editions of the now obsolete, FDI 27-5.

This field manual nourished sweral generations of civil affairs officers. When first published in 19408 its tone was reminiscent of Lieber's Instructions and its utility was aimed at a post-hostilities occupation of captured enemy territory. The 1943edition,' refiected a concern for the civilian control problem as a means of furthering the combat effort, to the neglect of the implications of post-hostilities control.lo The 1947 and final edition," exemplified a more balanced approach, but its language perpetuated a tendency towards legal imprecision that originated when civil affairs doctrine departed from the classic terminology of the 1940 edition of the manual.12 FRI 41-518 represents a

'Ibld. p. I'FM 27-6, B O ~ C meid .'ionual..lirltary Rarsinment, 30 Jel7 194P.'FP 27-6, Cnlted hlatrs Army and XOLV Xaniiol of Yihtory Gowrnnsnt and

"See Frledrlch and Arsociates. 1mBiZCon EZ8e71mCeQ In .Wliztory Gaiwn- yFI 27-6. Cntted States 4rmg and S~LU >JaniioI o i Ciazl Affairs iMil4tory

Qowmmenf, 11 Ootaber 1947 and C-I. 19 June 1966 irefleeting the eomlng lntn force ol the 1949 Geneia Civilian Coni.enflon. hereinafter cited 88 QC1.

Clad LYazis, 22 December 1943

mSntInWaild WOiII I1913).P,31

*rote the variations In definlflons In the suceesilre edltlons of FM 27-6:

DEFlNITIOS-\l~l~tary garernmeat IS that farm of government which Is established and malnfalned by a belllierent by force Of alms over oeoupled rerrltar? of the enems and oyer the mhabi-*ant3 thereof. In thla definltmn the term te7nlory 0, the enemy includes not only the teiillory of an enemy nation but also domestic territory recovered by mllltary Dccnmllon from rebels treated BI helll%erents "

FI 27-5 (1943) "1. MILITARY GOVERNMEST-CIYIL BFFAIRB. a Ullllfary Gorernment The term 'm~llfary zoiernment' 18 used In tbls manual to deswihe the lupceme a~tho~llyexercised by an armed farce oyer the lands. ProDerl~, and the !nhablfanls af enem? terntars. 01 allied or domestic territory recovered from enemy occupation. or from robels treated as belligerents. It ls eaerelsed when an armed force haa oooupled Bud ferrltory. whether b? farce OF bg agreement and has mbslltvted Its avfharlfy far That ai the 8weieign 01 8 PI~YLDYS govern.

FP 27-5 (1910) "3

*Qa llWB 117

ment. Sorarallnt? Is not transferred by reason af aocuDatlan. but the right of cOnliol p ~ s s e ~ to the O O C Y Y Y ~ ~ % force, llmlted only by Inter.

nsllo~sllaw and C Y B ~ D ~

The theater commander bear8 full responii-bllltg for mllltarg government He 1s. therefore UBUaIIy designated a3 rnllilarl miernor. but msi delez'ate both his aUlhonfs and tltle to R

.. . . subordinate commander.h OccuPLed Territory. The term 'aecumed territory' is used to mean any area LIwbleh mlllrary government la exeroned hi an armed ioree If doee not InCIUds teiritary ~n ahlch an armed farce Is located but ha% not assumed supreme authoiltp.

goiernor, are engaged In the eontml of ~ivll1a.nli.l'

Fl! 21-5 11947) "1.. , , .


"b, DoBnltloos. (1) Cwll a,7oivs/n?Xtary gol.ernrient fCd,VGi CAlhlG e n c ~ m m ~ ~ e s all pov'ers exercised and respOnJibilltle8 nisumed by the mllltar~ Oomrnander in an oceupmd 01 liberafed area rslth res~ect to the lands. yraperfren, and InhshlfanlE thereai. whether iuoh admin-Istrallon be In enemy. allled, or damesrio teITltory. The type of 0muY~-tion. whether CA or IIG, IB determined by the hlghert pollcg msklng authorlty. Narmally, the type af oceupstlon Is dependent u ~ m the

de%rse of eonfro1 exerelied br the reaponslble mllltari eommanler (2) Miii18rs Bobernmanl. The term 'mllitaiy gorernment' &a used Io this manual 1s Ilmlred to and denned 89 the eu~rerne authority eaerclaed by an armed Occupying lolee 01ei the lands, properties. and inhabitants of an enemy, allled, or d~meblle territory >llirrary government is exeroised ahen an armed fo:ce has ocouDkd such I ~ ~ r i f ~ i r , wlietler by

ioree OP agreernenr. and has iubstillifed Its Bulhorlly lor that of the soiereign OF PTBI~OUB gorelnmenr The n%ht oi control naises To tte ocea~ylng !orm llmlted only by rhe rule3 of lnfernsfional law and established Customs af war.


transitional stage between FJI 27-6 and the current doctrine."

In Mr. King's view, civil affairs should be regarded as a phrase descriptive not of pouer but of a relation. It simply means the sum total of the relationship between a military and a civilian community...

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