This article was published in the
July 2005 volume of the
The Rule of Law and Expeditionary Operations
The purpose of this essay is to examine the legal requirements
for establishing the Rule of Law (ROL) during United States Marine Corps
expeditionary operations. The focus is on the role of the Marine Air
Ground Task Force (MAGTF) as an enabling force, establishing a stable
security situation for follow-on force deployment. The discussion will
center on stability and support actions that could be taken during the
first 3 to 9 months in the immediate and temporary rear area created by
Expeditionary Maneuver Warfare (EMW) operations. Specifically, how can
the MAGTF operate as an occupation force or as a civil affairs
administration to implement a temporary military government?
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.
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
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.
If a U.N. mandate for intervention under Chapter
VI of the U.N. Charter exists, then the rules of occupation would not
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).
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
If the MAGTF were to engage in combat operations where terrain was
seized and held it would not technically be an occupation.
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.
Including the requirement to establish the ROL over the region if the
host nation is incapable of providing direct governance.
A military government is a government imposed by
force, where the law of war determines the legality of its acts.
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.
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.
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.
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
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...”
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
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.
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.
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).
The mission of the JRAC is to protect the rear area and maintain
sustained support to the joint force.
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.
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
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
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.
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.
A regional appeals court would be established at the higher more
centralized level to oversee a group of districts.
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
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
The MAGTF in the future will be called upon to
intervene in states whose governments have collapsed.
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.
Having stand-by, rapidly deployable, expeditionary, transitional justice
teams available is a necessity of 21st 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.
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
Maj Karl Rohr is a Marine Coprs Infantry
Officer, last commanding Weapons Co. 1st Bn, 2nd
Mar during OIF I (2002-2003). He has extensive command time with a
Rifle Company (A, 1st Bn, 2nd Mar 2000-2002),
Rifle Platoon, Weapons Platoon and 81mm Mortar Platoon (2nd
Bn 3rd 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.