The Inaugural Major General John L. Fugh Symposium on Law and Military Operations: Investigating Military Operations: Added Value or Added Hype?

• Author: Mike P.J. Cole
• Position: Legal Advisor, British Army
• Pages: 194-221

194 MILITARY LAW REVIEW [Vol. 212

THE INAUGURAL MAJOR GENERAL JOHN L. FUGH

SYMPOSIUM ON LAW AND MILITARY OPERATIONS

INVESTIGATING MILITARY OPERATIONS: ADDED VALUE

OR ADDED HYPE?

LIEUTENANT COLONEL MIKE P. J. COLE*

I. Introduction and Symposium Construct

On May 17, 2011, the Center for Law and Military Operations at The

Judge Advocate General’s Legal Center and School (TJAGLCS) hosted

the inaugural Major General John L. Fugh Symposium on Law and

Military Operations (Symposium).1 The Symposium examined the trend

towards the externally imposed and mandated investigation, analysis, and

reporting on, of operations conducted by a nation’s armed forces (“third-

party investigations”).2

* Legal Advisor, British Army. The author is currently on exchange with the U.S. Army

Judge Advocate General’s Corps and serves with the Center for Law and Military

Operations (CLAMO) at the Army’s Judge Advocate General’s Legal Center and School

(TJAGLCS). The views expressed in this article are not necessarily his own, nor those of

any organization he works for or represents. Instead, this article is intended to reflect the

Fugh Symposium’s dominant themes and the debate that they generated. The author is

grateful for the assistance given to him in the preparation of this summary by Mr. David

Graham, Lieutenant Colonel Rodney LeMay, Captain Thomas Nachbar, Ms. Kristi

Devendorf, and the Fugh Symposium panelists and moderator.

1 The Inaugural Major General Fugh Symposium on Law and Military Operations,

Investigating Military Operations: Added Value or Added Hype, The Judge Advocate

General’s Legal Center and School, Charlottesville, Virginia (May 17, 2011). The Fugh

Symposium commemorates the name and memory of Major General John L. Fugh, who

died in May 2010. General Fugh was the first Chinese-American general officer in the

U.S. Army and served as the Judge Advocate General of the Army between 1991 and

1993. Prior to that, he served in a wide variety of assignments, including the Military

Assistance Advisory Group for China, Legal Advisor to the Ballistic Missile Defense

Office, Staff Judge Advocate for the Third Armored Division, Legal Advisor to the

Assistant Secretary of Defense for Manpower and Reserve Affairs and Chief of Army

Litigation. After retirement, MG Fugh held high-level executive positions in the defense

industry and was a member of the “Group of 100,” a non-partisan organization of

Chinese-American leaders chartered to foster a positive dialogue and build relationships

between China and the United States.

2 For ease of reference, this article utilizes the term “third-party investigations” to identify

an investigation into the conduct of military forces that is not carried out via the

military’s own internal investigation process.

2012] INAUGURAL FUGH SYMPOSIUM 195

This article summarizes the Symposium’s dominant themes and is

structured as follows. Part II discusses the multi-faceted nature of third-

party investigations. Part III considers the genesis of an investigation and

its associated mandates. Part IV focuses on investigation methodology,

with Part V discussing the Symposium’s views on whether third-party

investigations deliver “added value or added hype.” Part VI analyzes the

second-order effects that investigations can produce. Section VII briefly

articulates seven investigation challenges identified by the Symposium

participants. Finally, Part VIII presents some of the Symposium’s

conclusions.

The Symposium centered around the conduct of international,

national, and non-governmental organization (NGO) investigations such

as the United Nations’ (UN) “Goldstone Commission” into Israel’s 2006

Operation CAST LEAD in the Gaza Strip; the International Independent

Investigation Commission’s (IIIC) investigation into, and indictments

stemming from, the assassination of Prime Minister Rafik Hariri of

Lebanon; the activities of the International Criminal Tribunal for

Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda

(ICTR); and NGO investigations into the use of landmines and cluster

munitions and their contribution toward the Mine Ban Treaty3 and

Convention on Cluster Munitions.4

Forty-eight experts from around the globe participated in the

Symposium, to include members of the American, Israeli, Canadian,

German, and British armed forces; academics from noted American

institutions; representatives from the Departments of Defense, State, and

Justice; and NGO members. Five panelists spoke of their personal

involvement in, and perception of, third-party investigations.5

3 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-

Personnel Mines and on their Destruction, Sept. 18, 1997, 26 U.N.T.S. 5.

4 Convention on Cluster Munitions, May 30, 2008, 26 U.N.T.S. 6.

5 Bonnie Docherty, a lecturer at Harvard Law School and senior researcher at Human

Rights Watch (HRW), spoke on HRW’s field work into the use of cluster munitions in

warfare. Beth van Schaack, professor at Santa Clara Law School, spoke on her

involvement as the Legal Advisor for the Documentation Center of Cambodia

investigating the Khmer Rouge’s abuses. Colonel Sharon Afek, Deputy Military

Advocate General (MAG), Israeli Defense Force (IDF), spoke on the IDF’s experience of

being the subject of international investigations. Professor Larry Johnson, Columbia Law

School and former Assistant Secretary-General for Legal Affairs at the United Nations,

spoke on the UN’s Charter-based mandate to conduct international investigations and the

UN Secretary General’s role in the process. Finally, Ambassador Stephen Rapp, U.S.

Ambassador-at-Large for War Crimes Issues, shared his experiences and thoughts on this