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OCCUPATION AND CIVIL AFFAIRS ADMINISTRATION

According to the Law of Armed Conflict the rules and regulations of occupation apply only to belligerently occupied areas. But as a matter of policy, U.S. forces will observe these as far as possible in all foreign districts under military control. This section discusses how the Marine Corps applies these rules and regulations of occupation in various situations. 

The Marine Corps has many options for how to intervene.  Each may have a different requirement according to the Geneva Conventions. If the goal of invasion is to insert a flying column or raiding party to destroy or disrupt the enemy’s warfighting capability, without the intent to seize key terrain, then the rules and obligations of occupation do not apply because the force cannot be said to be occupying.[1]  If the goal of a landing is to seize and hold key terrain for use by follow on forces, then occupation has occurred and the rules and regulations apply.[2]

When the U.S. has been invited to intervene in regions that are ungovernable by the host nation or the United Nations, pursuant to an agreement or resolution, that district can be placed under Civil Affairs Administration. Civil Affairs Administration is not occupation. However, the MAGTF would utilize occupation rules as a guide until such an agreement was implemented.[3]

If a U.N. mandate for intervention under Chapter VI of the U.N. Charter exists, then the rules of occupation would not apply.[4] If the intervention falls under Chapter VII of the U.N. Charter, the MAGTF would be obligated to apply the rules of occupation as these operations fall under the Laws of Armed Conflict (LOAC).[5] There is some ambiguity in this realm; particularly in operations considered Chapter VI and a half, or operations that fall somewhere between peacekeeping and enforcement operations. What the British call wider peacekeeping.[6] If the MAGTF were to engage in combat operations where terrain was seized and held it would not technically be an occupation.[7] However, MAGTF forces would be obligated to enforce the rules of occupation in the seized territory until such time as the U.N. or indigenous government would take control.[8] Including the requirement to establish the ROL over the region if the host nation is incapable of providing direct governance.

MILITARY GOVERNMENT

A military government is a government imposed by force, where the law of war determines the legality of its acts. [9] Occupation does not transfer Sovereignty; the occupying power gains the authority to exercise limited sovereign like rights through the use of power in accordance to the law of war.[10] The establishment of a military government becomes necessary in both an invasion-based occupation and civil affairs based occupation when the legitimate government fails, or ceases to exist. 

A military government is intended to administer areas occupied by force where the legitimate government no longer exercises its functions.[11] A military government is responsible as the representative of the occupying power to restore and maintain public order, ensure human rights and provide the rule of law to the occupied territory.[12] The military government has the legal capacity to exercise limited sovereign like rights in order to accomplish the requirements of the ROL.

The MAGTF as an enabling force is responsible for setting the initial foundation.  As such, the MAGTF must provide for the ROL in anticipation of follow on assets that will require time to organize and deploy to the theater. Therefore, the MAGTF is the most logical organization to establish the initial framework of a military government. Generically, the initial shock of the intervention will last two to three months. If the MAGTF doesn’t use this period of time to solidify control of rear areas and allows even tacitly the disobedience of law, the momentum will be lost and criminal gangs will become established.[13] The MAGTF will have failed as an enabling force if criminals are allowed to establish lawless zones while the international community organizes. To forestall this the MAGTF must have an organic capacity to manage a military government for up to 9 months. A deployable, temporary military governmental structure embedded in the MAGTF would better address the initial governance vacuum.

EXERCISE OF LIMITED SOVEREIGN LIKE RIGHTS

The Coalition Provisional Authority’s (CPA) Order Number 2, Dissolution of Entities, is a recent exercise of sovereign like rights. With it Ambassador Bremer officially dissolved most of the former Iraqi regime entities. These organizations where in violation of international human rights laws; and posed a significant threat to the security of coalition forces and the non-combatant population. Thus, they could be dissolved as an exercise of limited sovereign like rights.

This exercise of limited sovereign like rights is a distinct change from historical occupations. Prior to the 1949 Geneva Conventions, the U.S. saw military government as “superseding as far as may be deemed expedient, the local law... Its exercise is sanctioned because the powers of sovereignty have passed into the hands of the commander of the occupying forces...”[14] The major differences between pre and post Geneva are that the state laws are not superseded and more importantly the sovereignty of the state remains inviolate.

An occupier may legally amend or repeal some laws and remove some officials when deemed a necessity for the public order and security. An occupier may not deprive the state of its sovereignty. In a Civil Affairs Administration, the host nation with possible U.N. assistance would retain all sovereign rights and the Commander of the MAGTF, Civilian Administrator or Military Governor could not make any changes without express permission.

A STABILE SECURITY SITUATION

The Marine Corps provided the lead elements for interventions in both Somalia and Haiti in the 1990’s. After the Marines departed, for a host of reasons, these interventions failed. It is arguable however, that had the MAGTF been authorized and equipped to conduct ROL operations with the goal of establishing a stabile security environment from the start, the initial insertion of follow-on forces would have had a better chance for success.

The measures of effectiveness for a stabile security situation are the establishment of the ROL through a competent police, corrections and judicial system; the emplacement of an efficient civil service and professional bureaucracy; and the establishment of a professional and disciplined military accountable to a legitimate civilian authority.[15] The intent is to provide temporary ROL for the affected region allowing the host nation and multi-national forces to develop and deploy the organizations necessary for long-term security and stability.

TRANSITIONAL JUSTICE

Transition is the critical time in a post conflict scenario where the legitimate state is weak and criminal gangs are able to capitalize on this.[16] Scratch made police and judiciaries are ineffective. Reusing pre-existing forces without retraining and vetting to remove the criminal and corrupt is problematic. Organizing and deploying international civilian police volunteers takes time.

The MAGTF will be the first military force on scene in both combat and humanitarian interventions. Its mission is to stabilize the situation prior to the arrival of coalition forces. This transition period begins immediately once terrain has been secured and continues until the MAGTF is relieved.

The responsibility generally falls to the Joint Rear Area Commander (JRAC).[17] The mission of the JRAC is to protect the rear area and maintain sustained support to the joint force.[18] With this mission and under the auspices of the authority granted by the U.N., a Civil Affairs Treaty, and in accordance with the authority of sovereign like rights the MAGTF and the JRAC can implement ROL operations. This includes the establishment of a temporary military government, with its attendant police and judiciary functions.[19]

In the initial response phase a review of the existing judicial system is critical. This review should identify the “indigenous legal professionals; select individuals for judicial positions; [&] establish a professional code of conduct for the judicial system.”[20] It also includes a review of the systems infrastructure the physical courts, schools and libraries needed to run a judiciary. The next phase would be transformation that includes vetting, hiring and establishing legitimate legal professionals. In an invasion or intervention where the system has collapsed this would take some time.

In the Iraqi case, there were an estimated twenty thousand lawyers and one thousand judges operating under the Saddam Regime.[21] This organization was considered to be fairly impartial and devoid of undue governmental influence. There was a strong reservoir of candidates to re-initiate the legal profession even with CPA Order Number 1, De-Ba’athification. However, the process of getting even a skeleton system in place took ninety days and did not take full effect until six months after the invasion. Not until 13 September 2003, did the CPA re-establish the Iraqi Council of Judges. Until then no true centralized legal system existed in Iraq.[22] As a default, the coalition military had to take over this role—a role for which it was ill prepared.

Because the ROL is vital to security an enabling force should have a capability that can, in the extreme, act as the legitimate legal system or act somewhere in between as a monitoring, vetting and training organization. This system could follow the design of the U.S. Federal Court system. A judicial team could be deployed in each region seized. The team would comprise police, judges, prosecutors, defense attorneys, and corrections, court administrators, codes and procedures for running a district office.[23] A regional appeals court would be established at the higher more centralized level to oversee a group of districts.[24] With this structure the JRAC would have the proper tools to accomplish his dual mission of security and support for the joint force and the MAGTF would accomplish its mission of enabling a stabile security situation for all follow on forces.

BALANCING TRANSITIONAL JUSTICE AND SOVEREIGNTY

 “A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. His responsibility is coexistent with his area of command. He is charged with notice of occurrences taking place within that territory…dereliction of his duty rests upon him…” –The Nuremburg Tribunal

An invading force has to enforce the ROL in occupied territory, and can do so as an exercise of limited sovereign like rights. In order for the JRAC or a frontline commander to enforce the ROL, he must have the backing of a system of justice to deal with criminal non-combatants. The laws to be followed are those of the occupied or administered state that do not contradict international human rights laws and that do not prevent or interfere with the conduct of military actions. Law enforcement must be a priority in any intervention.

CONCLUSION

The MAGTF in the future will be called upon to intervene in states whose governments have collapsed.[25] In these lawless areas, regardless of the reason for intervention, the Marine Corps must be prepared to install temporarily aspects of government to establish a stabile security environment. This requires an impartial judicial system.[26] Having stand-by, rapidly deployable, expeditionary, transitional justice teams available is a necessity of 21^st Century warfare. It would give the host nation and multinational support forces the opportunity to select, train and integrate a police and legal system deliberately over time not rushed and ad hoc.[27] If the judicial system is stood up too quickly, it risks collapse from corruption. If stood up too slowly the damage done may be irreparable. The MAGTF can enable the temporary relief necessary for the host nation to recover.

Maj Karl Rohr is a Marine Coprs Infantry Officer, last commanding Weapons Co. 1^st Bn, 2^nd Mar during OIF I (2002-2003).  He has extensive command time with a Rifle Company (A, 1^st Bn, 2^nd Mar 2000-2002), Rifle Platoon, Weapons Platoon and 81mm Mortar Platoon (2^nd Bn 3^rd Mar 1994-1997).  He was the 2003 Winner of the Marine Corps Gazette Chase Essay Contest.  He is presently the CO of the Marine Corps Detachment at the Defense Language Institute in Monterey.