Bridging the Potomac: How a Rule of Law Field Force Strikes Balance Between Security and Development Operations

Introduction

In the aftermath of the September 11th terror attacks and the NATO invasion that overthrew the Taliban-controlled government in Afghanistan, the international community gathered at the initial Tokyo Conference where, led by the United States, they pledged to reshape Afghanistan into a stable democracy.  In May, 2003, following the invasion of Iraq, then-President George W. Bush announced the end of combat operations and the beginning of a similar reconstruction mission.  The goal was to turn rogue states into democratic strategic allies by building up both public and private institutions, such as governance, infrastructure, economic entities, civil society, and rule of law.  However, the United States and its allies soon found themselves in protracted counterinsurgency conflicts, fighting ruthless enemies while, at the same time, working to build functioning states and protect local civilian population.  These improvised peace building/ war fighting hybrid missions created unforeseen challenges for the United States and Coalition members.  Many solutions, strategies, and grand proposals were put forth, with varying success.  Yet, after more than ten years, an estimated billion dollars spent[1], thousands of Americans killed, and tens of thousands of Americans wounded,[2] the U.S. Government is still struggling to strike the balance in the “clear, hold, build” formula of counterinsurgency, or COIN, operations.

The U.S. Government’s rule of law mission has morphed and mutated throughout the conflicts in Iraq and Afghanistan.  Legions of lawyers, advisors, military commanders, civilian officials, contractors, and lawmakers all sought to stamp their brand on what is certainly the most fashionable sector of counterinsurgency and stability operations.  The concept of “rule of law” captures the attention of nation-building westerners in a way that makes the likes of building functioning government institutions, economic planning, and big construction seem dull or overly technical by comparison.  Like a Rorschach test for society, rule of law can mean all things to all people, and this subjective approach is too often reflected in disjointed efforts on the ground.  Perhaps the greatest divide within the U.S. Government’s rule of law mission is between the military community and the civilian agencies tapped with rule of law tasks, particularly, the Department of State (DOS) and the U.S. Agency for International Development (USAID).  In Afghanistan, the U.S. military attempted to bridge this divide by establishing a rule of law “field force”—a command with mobile units specifically dedicated to rule of law projects in various areas of operations. 

The purpose of this paper is to identify some of the most frequent obstacles rule of law practitioners experience in military environments, and to suggest that the rule of law field force concept is the best formula for effectively bridging military rule of law tasks with civilian development missions in post conflict arenas and stability operations.

Rule of Law and the Security Catch-22

In December of 2006 the Army issued Field Manual (FM) 3-24, Counterinsurgency, commonly abbreviated as COIN.  This field manual was the culmination of lessons learned by the military and civilian agencies in the Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) conflicts in Iraq and Afghanistan, respectively.  Since the publication of FM 3-24, and even in the months leading up to it, COIN became the strategy, philosophy, and catechism of the U.S. military in Iraq and Afghanistan.  There is no shortage of analyses of the wisdom and folly of the U.S. COIN strategy, and there will be grist for the mill for decades to come.  Indeed, with the end of the U.S. military mission in Iraq on December 18, 2011, and the current military drawdown in Afghanistan, many wait to see whether the COIN doctrine will prove itself to be sacred or profane.

A major focus of the COIN debate revolves around the role of the rule of law mission within the COIN strategy.  Up to the present, finding the balance between the expediency of the security mission with the long-term investment in rule of law efforts has eluded the U.S. leadership. The essence of COIN is delegitimizing insurgent control while simultaneously building support for the host nation government. Rule of law, under the COIN doctrine, is “a key goal and end state”[3]  that stems from the “realization that combat operations without civilian stabilization efforts are insufficient to ‘countering’ or defeating an insurgency.” [4]  Rule of law practitioners argue that in order for security gains to be fully realized, rule of law activities must have equal priority alongside kinetic missions.  However, conducting rule of law operations in an environment with an active insurgency presents many challenges, and can be prohibitive to civilian rule of law practitioners.  Battle space owners are primarily concerned, justifiably so, with carrying out combat and security operations.  The result is that those units, organizations, and individuals charged with implementing rule of law operations, more often than not, are relegated to a secondary role in favor of immediate kinetic security gains.

Under Department of Defense Instruction (DoDI ) 3000.05, “Stability Operations,” the military has broad latitude to conduct stability operations of which rule of law related activities may be a component, “throughout all phases of conflict and across the range of military operations including combat and non-combat environments”[5] until “such time as it is feasible to transition lead responsibilities to other U. S. Government agencies, foreign governments and security forces, or international governmental organizations.”[6]  As stated above, the most common justification for marginalizing rule of law actors is that security, though partnered with rule of law in theory, must necessarily trump all rule of law activities.  Civilian agencies cannot come in and implement their development mandate if the area in question is still a battlefield. As the situation on the ground in a given campaign requires some level of military involvement at all times, it is only natural for military commanders to put the security mission out front. Security, chronologically and operationally, comes first.

The implications of such prioritizing are difficult for rule of law practitioners—civilian or military—to overcome. For example, a small district team of rule of law practitioners (or even a more robust provincial team), may want to leave the safety of their forward operating base (FOB) to travel to a courthouse or law school in order to meet key officials to further specific rule of law initiatives. From a security perspective, such activities may be viewed as an unnecessary use of time and resources when there are bad actors in the region who need to be killed or captured.[7] In some cases, rule of law teams working on longer-term projects, even those which have an obvious connection to security, such as developing the curricula in the law schools, or training judges in order to build an enduring and sustainable justice mechanism, are regularly denied transportation, security details, and other assets because such long-term development projects are not considered to be mission essential. 

One could argue, however, that if COIN is taken seriously, then the security mission must be viewed as intimately intertwined, and not as competing, with the broader array of rule of law activities. The repeated failure of the battle space owner to provide critical support to rule of law teams and or to incorporate rule of law initiatives into strategic planning paralyzes the broader rule of law mission set required by COIN.  Additionally, civilian rule of law practitioners are commonly limited by the security protocols established by DOS or by the contractor that employs them. What may be viewed as inconsequential at the micro level, such as one team being denied one mission, ends up taking its toll at the macro level if commanders adopt the mentality that rule of law activities deserve only surplus assets or civilian agencies are too risk adverse to allow adequate time outside the wire.  COIN may be great in theory, but the realities on the ground force all commanders to place security above any rule of law activities not related to training police or other forces. It is common that in most areas of operation, even where kinetic activities have largely ended in what is known as the “hold” phase, security gains remain tenuous. This makes movement outside the wire prohibitive, especially when civilians are involved. These institutional breakdowns mean that physical security activities fail to operate in tandem with broader rule of law/governance activities. Consequently, the COIN mission chugs along on half horsepower, never reaching optimum velocity.[8]

Bridging the Institutional Gap: Rule of Law Field Force for Afghanistan

Although the results of development activities are less tangible and more difficult to quantify than military operations, they are nonetheless vital in a COIN-centered mission. One of the great implementers of COIN in Afghanistan, General Stanley McChrystal, would vigorously promote the breadth of tasks within a COIN strategy such as to “promote good local governance, root out corruption, reform the justice sector, pursue narcotics traffickers, [and] increase reconstruction activities.”[9] However, even as he and other military commanders acknowledged the strategic importance of the rule of law mission in principle, such importance was never reflected in the daily battle rhythm for a number of reasons, not the least of which is that commanders were, and continue to be, skeptical of the individuals and organizations conducting rule of law in their areas.  Meanwhile, the civilian agencies claim that the priorities of the military often ignore the greater rule of law mission, focusing only on projects that are easily reduced to bare metrics, such as the number of court houses built or the number of police officers trained. Too often, such metrics are wrongly considered to be the most reliable indicators of progress.  Critical, but intangible factors, such as a cultural commitment to rule of law and the development of human capital, are not easily measured, and therefore, given little consideration.

Perhaps the primary reason for this intractable debate between security and rule of law is not a particular process of measuring results, but the deep institutional divide between DOD and the civilian agencies, specifically DOS and USAID, about the mission itself.  The deployed military culture is one of constant detailed planning, decisive execution, and measured results.  The long-term development mission of DOS, USAID, and the rest of the inter-agency cannot, by its very nature, fit into this mold.  The operative language in DoDI 3000.05 is that the military will lead all stability operations, including rule of law, until “such time as it is feasible to transition the lead” and the Department “will seek to enable the deployment and utilization of the appropriate civilian capabilities.”[10]  A common refrain, however, is that rule of law cannot have top priority if the civilian agencies are simply incapable of carrying through with open-ended activities, such as building the administrative infrastructure and human capacity of the traditional justice triad of cops, courts and corrections.[11]  The unsympathetic view is that the civilian agencies have yet to prove their mettle.  They set ambitious goals, but offer no measurable end state or specific strategy, all the while counting on the military to do the heavy lifting.[12]  A more sympathetic view is that the necessary long-term projects of rule of law cannot be reduced to detailed plans, given the variables with which rule of law practitioners must contend, not the least of which is that it is ultimately up to the host nation to fulfill rule of law milestones. Additionally, relying on military assets is the most reasonable course of action for other agencies, given commanders’ dogged ownership over specific areas of operations.

Regardless of who is to blame or which department or agency can or should take the lead, all parties—DOS, DOD and even Congress, as well as many policy experts and academics—[13] agree that a narrow focus on security is necessary, but not sufficient, to accomplish the concomitant goals entailed in COIN.[14]  Therefore, the military must find a way to effectively incorporate broader rule of law activities into its battle rhythm, as it does with routine clearance patrols, intelligence operations, and security force training.[15]  In fact, once General David Petraeus took over in Afghanistan in July, 2010 he demanded that rule of law activities begin immediately and in earnest, with or without civilian assistance. The rule of law field force concept, ideally, was designed to buttress the “hold” portion of COIN’s “clear, hold, build” doctrine.  This field force would provide rule of law capacity in the gap period between the highly kinetic operations, and the stabilization, reconstruction and development mission of the civilian agencies. A primary consideration was that a military run and manned rule of law field force would not be constrained by security concerns.  The field force would have organic security capabilities, enabling movement of rule of law practitioners without straining the assets of the battle space owner,[16] thus alleviating much of the tension between security and rule of law priorities.

By September 1, 2010, the Rule of Law Field Force--Afghanistan (ROLFF-A) was established as a one-star command under Combined Joint Interagency Task Force 435 (CJIATF-435), in parallel to the establishment of a centralized US civilian position focused on rule of law and law enforcement at the embassy level. ROLFF-A was intended to provide rule of law teams dedicated to implementing interagency rule of law objectives throughout Afghanistan. Throughout the 1990s, the Taliban had seized power and gained control over much of Afghanistan and their brutal, but swift, form of justice created an environment toxic to any form of modern judicial processes. This trend had to be undone if the rule of law portion of COIN was to succeed. COIN “could only be fully realized through the complementary employment of kinetic force and credible engagement with local leadership, justice sector personnel, and the populace of Kandahar City.” [17]  Therefore, security, stability and good governance of Kandahar City, a traditional stronghold of the Taliban, was viewed to be vital to the success of the Afghanistan mission. Brigadier General Mark Martins, the architect of ROLFF-A, understood this, and established a multi-disciplinary field force charged with operationalizing this symbiosis. ROLFF-A’s grounding mission was: “providing essential field capabilities and security to Afghan, coalition, and civil-military ROL project teams in non-permissive areas of Afghanistan, in order to build Afghan criminal justice capacity and promote the legitimacy of the Afghan government.”[18] Martins ensured that rule of law field support officers (ROLFSOs[19]) were placed in each of the Regional Commands (RCs), and imbedded into the provincial reconstruction teams already in place. In addition he imbedded ROLFSOs into the district centers to work with U.S. government or UN civilian partners on every aspect of judicial capacity building.

Within 6 months of the creation of ROLFF-A, the Defense Ministers from the 48 nations of the International Security Assistance Force (ISAF) endorsed the creation of the NATO Rule of Law Field Support Mission for Afghanistan (NROLFSM-A).  This organization mirrored the mission of ROLFF-A, and was tasked to provide essential field capabilities, liaison and security to Afghan and international civilian rule of law practitioners. The ROLFF-A command became a dual-hatted position of ROLFF-A/NROLFSM-A. A headquarters was established at Kandahar Airfield (KAF) with a full staff and a dedicated security force. ROLFSOs in the provinces and districts were involved in all manner of rule of law and development activities, working with Afghan police chiefs and prosecutors, law school deans, and Afghans working to provide access and transparency to their legal system.

However, in October of 2011, little more than a year after the inception of the field force, ROLFF-A’s dedicated security forces were repositioned, and most of the ROLFSOs were brought to Kabul as command staff, or sent to Bagram Airfield to assist with operations at the Judicial Center at Parwan (JCIP), the facility where security detainees captured by US forces received a trial under the Afghan criminal justice system. With these developments, the ROLFF-A/NROLFSM-A command was radically changed, and most of the rule of law tasks for which it was originally conceived were abandoned.

Meeting 21st Century Priorities for Rule of Law

Although ROLFF-A fell victim to the greater strategic circumstances in Afghanistan alluded to above, the field force concept should remain the model for future stability operations in post conflict arenas.  The Department of Defense’s January 2012 Report, “Sustaining U.S. Global Leadership”, states that “U.S. forces will no longer be sized to conduct large-scale, prolonged stability operations,”[20] (such as Iraq and Afghanistan).  Nonetheless, future wars are likely to involve a similar range of tasks, including rule of law activities. “Irregular warfare” is actually “more regular or conventional” [21] than commonly acknowledged, and therefore, we will continue to require COIN capabilities. In other words, some version of COIN will likely reemerge in the next conflict. As stated in FM 3-24, “wars are won through a new and total kind of governance, one that emanates from the military but reaches to security and stability for civilian life, formal and informal economics, structures of authority, patron-client relationships, political participation, culture, law, identity, social structure, material needs, ethnic and linguistic subdivisions, and more.”[22]  Therefore, rule of law field forces can and should play a robust support role in rule of law activities, as field force personnel will be ready to “both fight and build.”

It is important that we not forsake the rule of law field force concept, only to leave another gap in the next COIN or steady-state operation, and face the same institutional obstacles that we have worked to overcome for the past ten years.  Rule of law field forces must continue to be developed and readied[23] to deploy to meet the entire spectrum of stability operations.  As the US global strategy increases the number of steady-state missions, rule of law will continue to be a key strategic pillar in security cooperation. A special force focused on rule of law and human rights would provide the United States the ability to conduct stability operation activities not only in war zones, but wherever the security situation is too physically or financially challenging for the civilian agencies. If properly mainstreamed and staffed, rule of law field forces, like special force units, could be assigned quickly and focused surgically to create a path to sustainable host nation civilian lead.  Defense Secretary Panetta explained in a June 28, 2012 speech at the U.S. Institute of Peace that we must “reshape our priorities with a new defense strategy for the 21st century…[with] greater emphasis on building the capabilities of others to help meet the security challenges of the future, and to sustain a peaceful and cooperative international order.”  The rule of law field force concept can play a critical role in supporting this strategy.

However, the idea of the military developing the capacity to take a lead in rule of law operations stirs dissent from both the sides of the Potomac. There are those in the military who have grown weary of carrying out a mission that has been the bailiwick of the civilian agencies, and are concerned that the emphasis on COIN has degraded conventional warfighting capabilities.  For some in DOS and USAID, a military-oriented development strategy is seen as a continued intrusion into civilian territory by an organization that is ill equipped for a mission that requires careful diplomacy and patience. The legitimacy of such critiques aside, DOD’s emphasis on stabilizing weaker states for national and international security interests is a reality that both the Pentagon and Foggy Bottom must learn to accept and forge ahead in concert. There are many (and not only on the military side) that have little faith in civilian capacity to perform train-and-assist missions within their own sphere, let alone take the lead for such broad security sector capacity building. Having served in a rule of law capacity for both DOS and DOD, I know that such concerns are not without justification. The literature on foreign assistance, security cooperation, and rule of law, contains ubiquitous anecdotes and well-documented analysis denoting the inability of our civilian agencies to handle the broad range of rule of law and governance tasks across the globe required for our national security. Security expert Amitai Etzioni identifies an indicative problem with civilian agency lead, writing, “the State Department has long argued that its personnel are better suited for the ‘build’ part of COIN than the military, although it has had a hard time finding enough staffers who are willing or can be motivated to serve in that capacity.” In fact, State’s attempt to develop a Civilian Response Corps (S/CRC) early in the Iraq campaign never came into fruition. Nonetheless, the January 7, 2013 State Department’s International Security Advisory Board’s Report on Security Capacity Building, shows that there is still appetite for the development of “a professional corps of civilian reservists with specialized skills (rule of law, engineering, etc.), and in sufficient numbers, to provide surge capacity…regular training, as the military services do with their reserve forces, would be an important component.”[24] Although the ideal world may be one where DOD breaks and DOS builds, the reality is that it is the US military that will continue to bear at least some, if not most, of burden in the development of government and civil society institutions throughout the globe.[25]

As major-coin COIN operations on the battlefield draw to a close, smaller steady-state and stability operations are receiving new emphasis, to include rule of law. A doctrine establishing specialized units dedicated to rule of law with respect to broad based stability operations needs to be seriously considered. In many developing partner nations, the military is generally one of the strongest government institutions. In The Soldier and the Changing State, Zoltan Barany “argues that the military is the most important institution that states maintain, for without military elites who support democratic governance, democracy cannot be consolidated…building democratic armies is the quintessential task of newly democratizing regimes.”[26] Therefore, host nation partnership with the US military, in the form of a rule of law field force, may be the best starting point for rule of law initiatives.  Building capacity within a the host nation military culture can, at least in principle, lead to greater transparency and commitment to rule of law within the political and social institutions with which the military is often intimately entwined. Because of this political dynamic in many regions, such as the USAFRICOM area of operations, the U.S. military may be a necessary interim tool to simultaneously advance the rule of law and human rights training.[27]

Presently both USNORTHCOM and USSOUTHCOM have dedicated human rights offices[28] which focus on integrating respect for human rights into military doctrine with the goals of moving toward civilian control over the military with strong mechanisms of accountability and increased transparency. In the same vein, USAFRICOM is now working with the defense institutions and security forces in their region to develop respect for civilian control over the military. Initiatives focused on partnered security forces throughout the African continent promote rule of law training in ethics, transparency, compliance with the international law of armed conflict, military justice, and furthering the development of democratic values and institutions.[29] Other COCOMs involved in stability operations are sure to follow in their footsteps, developing de facto human rights and rule of law programs to ensure that our foreign partners develop professional militaries committed to civilian leadership and the requisite governance structures essential to ensuring sustainability. A rule of law field force, if properly equipped and staffed, will be an effective unit in this mission—providing dedicated assets and expertise for augmenting and assisting civilian entities in classroom instruction, field training, and administrative development to the host nation police, military, and justice sector.

Despite the best intentions, justifiable fears about the impending “militarization” of civilian institutions in our partner nations are ever present. Foggy Bottom remains concerned that their authority may dwindle further if there is the appearance of ceding development programs to DOD.  However, part of the rule of law field force doctrine would be specifically to work towards transition to civilian lead, in accordance with DODI 3000.05.[30] The rule of law field force should be designed to incorporate civilian rule of law practitioners as security and stability in the host nation increases, partnering with DOS and USAID, and eventually handing off the rule of law mission to the civilian agencies as the host nation civilian institutions strengthen.[31]

Conclusion

While COIN remains the convention, to varying degrees, in post-conflict and steady-state operations, rule of law will be an essential part of the US security mission. The development of rule of law field forces trained and ready to work with militaries and other rule of law entities across the globe would provide a cohesive and effective strategy for implementing rule of law initiatives. Under this strategic plan, each field force would have the flexibility to adapt to the needs of the geographical region, culture of the host nation, as well as the full spectrum of operations for security and stabilization, from pre- to post-conflict missions. By developing the right directives, training activities, and funding mechanisms for rule of law and human rights training for a field force, we have the opportunity to achieve long-term stability of our international partners to support our own national security.


[1] Costofwar.com

[2] Over 5,000 Americans have been killed and over 50,000 Americans have been wounded since 2001. http://www.huffingtonpost.com/2012/11/07/iraq-afghanistan-amputees_n_2089911.html

[3] Army Field Manual 3-24, Counterinsurgency, June 2006, p. D-8.

[4] Judah Grunstein, “The McChrystal Myth: Does He Really 'Get' COIN?” World Politics Review http://www.worldpoliticsreview.com/, 23 June 2010. Thus the first operational chapter of the Field Manual (FM 3-24), Counterinsurgency, is titled: ‘Unity of Effort: Integrating Civilian and Military Activities.’ acknowledges that the civilian agencies have the authority to lead all “stabilization and reconstruction” activities, including governance and rule of law.

[5] Department of Defense Instruction, 3000.05, Stability Operations, 2009.

[6] Department of Defense Instruction, 3000.05, Stability Operations, 2009, emphasis added.

[7] This focus may even have the unintended consequence of actually working contrary to COIN as small “s” security objectives may be inconsistent with BIG “S” security objectives to include rule of law. For example, security needs may require the removal of “bad actors” that, despite incompetent or corrupt behaviors in specific instances, may nonetheless have actually helped promote justice capacity building over the long haul through their support of the central government.

[8] The best documentation of both the successes and failures of rule of law activities understood broadly and from a wide range of arenas can be found in Book V (13 June 2011) of the US Joint Forces Command Unified Action Handbook Series: Handbook for Military Support to Rule of Law and Security Sector Reform, where Ms. Michelle Hughes was able to collect and analyze the work of the vast community of military, interagency and international rule of law players involved in a vast array of activities since 9/11.

[9] Rajiv Chandrasekaran and Karen DeYoung, “Changes in Afghanistan, Washington May Require Shift in U.S. War Strategy,” The Washington Post, September 21, 2009.

[10] Department of Defense Instruction, 3000.05, Stability Operations, 2009.

[11] What is called the “rule of law orthodoxy” by some scholars. See, for example, Stephen Golub, “Beyond Rule of Law Orthodoxy: The Legal Empowerment Option,” Carneige Working Papers, October 2003, p.1-46, p.3.

[12] See, for example, Anthony H. Cordesman, “Afghanistan and the Uncertain Metrics of Progress,” Center for Strategic and International Studies, March, 1, 2011.

[13] One specifically pointed example is: Gordon Adams and Rebecca William, “A New Way Forward: Rebalancing Security Assistance Programs and Authorities,” The Stimson Center, March 2011.

[14] “Security” is a rule of law practitioner’s term of art that, as pointed out by the United States Institute of Peace is a “cross-cutting” principle that can either mean “physical security” or “human security” or: “the physical security that permits the freedom necessary to pursue a permanent peace.” http://www.usip.org/print/guiding-principles-stabilization-and-reconstruction-the-web-versio

[15] The obvious security/development activities of building and training the “civilian” police, and other security, forces, as well as those activities surrounding detention operations, are often misguidedly packaged as the only relevant rule of law activities within COIN. But rule of law within the COIN context is much broader :“In short, this is a strategy of competitive state building combining targeted, selective violence and population control, on the one hand, with the dissemination of a credible mass ideology, the creation of modern state structures, the imposition of the rule of law, and the spurring of economic development.” Stathis Kalyvas, “Review Symposium: The New U.S. Army/Marine Corps Counterinsurgency Field Manual as Political Science and Political Praxis,” Perspectives on Politics , No. 2, June 2008, p. 351.

[16] ROLFF-A’s stated mission: “provide essential field capabilities, liaison, and security to Afghan and international civilian providers of technical assistance supporting the building of Afghan criminal justice capacity, increasing access to dispute resolution services, thereby helping to improve the efficacy of the Afghan government.” Not only was the security of the area not to be used to prevent access to population centers, but ROLFF-A was intended to specifically focus on such “hot” areas precisely to set the stage for security through rule of law.

[17] Rule of Law Field Force - Afghanistan, Rule of Law Field Support Officer Deskbook, NATO Rule of Law Field Support Mission, p. 9 (2012), which relied heavily on the research and writing I had done while serving in Afghanistan on ROLFF-A, October 2011-February 2012.

[18] ROLFF-A mission statement paraphrased in U.S. Department of Defense, Central Command (CENTCOM) statement: “Rule of Law Conference Brings Together Afghan, International Partners,” September 29, 2010.

[19] ROLFSOs were made up of rule of law practitioners from all manner of military expertise from Judge Advocates to Military Police to experts in finance and city planning. They were all brought together in Kabul, periodically, for a week of lectures and activities related to rule of law and governance.

[20] “Sustaining U.S. Global Leadership: Priorities for the 21st Century Defense,” U.S. Department of Defense, January 2012, p.6.

[21] See the great work on the issue of just what wars are “irregular” and require some form of counterinsurgency by Sebastian L. v. Gorka and David Kilcullen, “An Actor-Centric Theory  of War: Understanding the Difference between COIN and Counterinsurgency,” Joint Forces Quarterly, Issue 60, 1st Quarter, 2011, pp.14-18.

[22] FM 3–24, 81–99.

[23] Exactly which portion of the military ought be trained for such activities, and in what manner, is outside the scope of this paper. I have a brief discussion of the use of the Civil Affairs teams for such activities in my “When Mars and Venus Align: The Next Step in Interagency Cooperation,” Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates, The Judge Advocate General’s Legal Center & School, U.S. Army, 2011.

[24] State Department’s International Security Advisory Board’s Report on Security Capacity Building, January 7, 2013, pp.21-22.

[25] The Department of State’s attempt to develop a Civilian Response Corps (S/CRC) never came into fruition and the January 7, 2013 State Department’s International Security Advisory Board’s Report on Security Capacity Building, recognizing the problem of interagency cooperation recommends the development of  “a professional corps of civilian reservists with specialized skills (rule of law, engineering, etc.), and in sufficient numbers, to provide surge capacity…regular training, as the military services do with their reserve forces, would be an important component,”

[26] Zoltan Barany,  The Soldier and the Changing State: Building Democratic Armies in Africa, Asia, Europe, and the America, Austen, TX: University of Texas, 2012., book jacket comment. “Barany examines the experiences of developing countries and the armed forces in the context of major political change in six specific settings: in the wake of war and civil war, after military and communist regimes, and following colonialism and unification/apartheid. He evaluates the army-building and democratization experiences of twenty-seven countries and explains which predemocratic settings are most conducive to creating a military that will support democracy. Highlighting important factors and suggesting which reforms can be expected to work and fail in different environments, he offers practical policy recommendations to state-builders and democratizers.”

[27] See, for example, Rebecca Bill Chavez, “Integrating Human Rights and Public Security: The Challenges Posed by the Militarization of Law Enforcement,” Joint Forces Quarterly, Issue 64, 1st Quarter, 2012.

[28] See, for example, Rebecca Bill Chavez, “Integrating Human Rights and Public Security: The Challenges Posed by the Militarization of Law Enforcement,” Joint Forces Quarterly, Issue 64, 1st Quarter, 2012, p. 71.

[29] AFRICOM Theater Campaign Plan 7000-12 ;  AFRICOM J-05 Rule of Law Initiative;  AFRICOM Communication Guide, 10 December 2012, page 21.

[30] Such practitioners include a wide variety of experts, not only civilian or military lawyers, expertise in civil society and governance development broadly forged in the drawn out and complicated rule of law operations in Iraq and Afghanistan. See, for example, Gary Anderson, The Closers part V:  Mentoring Host Nation Interagency Operations, Small Wars Journal, 1 June, 2011.

[31] For more detail on this see my “When Mars and Venus Align: The Next Step in Interagency Cooperation,” Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates, The Judge Advocate General’s Legal Center & School, U.S. Army, 2011.

 

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It is true that in October 2011 most of NROLFSM/ROLFF-A field teams lost their dedicated security forces. The teams remained in the field, however; personnel were not reassigned to Kabul and Bagram. The teams used a variety of methods to deliver services OTW, including but not limited to, partnering with local ISAF forces for security and transport to Afghan judicial centers and actors. ROLFF-A's goals were not "abandoned" and in fact developed in 2012 to include additional goals and missions. Although it has been said that ROLFF-A was a great idea executed with too little, too late, many talented members of NROLFSM/ROLFF-A worked hard to accomplish BG Martins' goals and vision after October 2011. Their efforts and sacrifices should not be overlooked and forgotten.

Dr. Klein’s excellent article describing the issue of implementing the Rule of Law during COIN operations is, in my opinion, significant. I cannot agree more with the description of the issues and potential solutions of transitioning COIN to the ROL (Rule of Law). My disappointment in this article is that Dr. Klein does not once mention the LOW (Laws of War). I think the essential transition coordination point (or Transition Operations) must focus on the transition from the LOW to the ROL.
Strategically, operationally and tactically, our senior military commanders, in their search for legitimacy on the battlefield, do not recognize the fundamental difference between the Laws of War and the Rule of Law. I cannot agree more with “finding the balance between the expediency of the security mission with the long-term investment in rule of law efforts has eluded the U.S. leadership.” We can see this in the now famous Haditha Marine case. The military leadership applied ROL standards to a Marine rifle squad of a Marine battalion just starting the “Hold” phase for the city of Haditha. The transition from the LOW to ROL cannot be attempted until the build phase of COIN. The statement “one team being denied one mission, ends up taking its toll at the macro level if commanders adopt the mentality that rule of law activities deserve only surplus assets or civilian agencies are too risk adverse to allow adequate time outside the wire” is not a complaint but actually a metric. If the security situation is such that the military commander cannot support the ROL operations mission, then they should not be attempted.
If you return to Dr. Klein’s article and substitute the words “Laws of War” for the word security, a solution to the dilemmas presented by the good DR. become very clear.

Thanks for bringing attention to the subject. I largely agree. When I served in Rule of Law at ISAF, I found that we were still recovering from the formal justice focus appropriate to Iraq and having trouble adapting to the realities of Afghanistan. We were focusing on the trappings of formal government - cops, judges, courthouses - rather than the more important role of informal justice - jirgas and shuras - in Afghan society. This put us in the role of being seen as Karzai's stooges. We should have focused more on governance and less on government. Afghan society had been largely self-governing for centuries, with the formal government being largely in the role of approving and enforcing informal conflict resolution, not supplanting it. (Furthermore, I heartily disagree with the premise that it was our job to support Karzai. Our job was to set the conditions under which the Afghan people could find a peaceful means of resolving their differences and building an appropriate government, whether or not that was the government in it current form. You'd have to be pretty ignorant to think that a unitary executive government is culturally and historically appropriate for Afghanistan.) In any case, the most effective projects in resolving disputes and thus reducing violence were generally in the informal sector (including USAID's in Nangahar). Some of NROLSM's missions were supportive of this - communication, transportation and security to support jirgas and shuras - while others - think contract quality assurance for building projects - were not. To succeed in the future, Rule of Law efforts should focus on what is appropriate and achievable within the cultural context we're operating in, not on what we might prefer from our own government.