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THE VIABILITY OF USING MILITARY COURTS
TO ENFORCE LAW IN POST-WAR IRAQ

Lieutenant Colonel Geoffrey S. Corn
Chief, International and Operational Law
Office of the Judge Advocate, U.S. Army Europe
JURIST Guest Columnist

As the storm clouds of war begin to clear over Iraq, international law experts in government, international organizations, and - perhaps most importantly - the military, are beginning to confront the plethora of legal issues related to the post-conflict environment. The removal of the governing regime has resulted in a requirement for military involvement in the maintenance of order and the provision of the basic needs of the population until some form of domestic or international civil authority is capable of assuming those responsibilities.

In terms of the "law of war" (also referred to as "international humanitarian law"), the military must execute the basic obligations of 澱elligerent occupation in Iraq. While this expression tends to evoke unfavorable connotations (even within the military legal community "occupation" is occasionally referred to as the infamous 徹 word), the international law of belligerent occupation is a relatively comprehensive source of both authority and obligation intended to balance the interests of the occupying force with those of the civilian population under belligerent control, and ultimately facilitate the transition from military to civil authority. This essay will outline the basic sources and rules of belligerent occupation, with a particular emphasis on mechanisms - including military courts - that will be available to U.S. commanders responsible for maintaining basic order within occupied areas. The timeliness of this topic is highlighted by recently-passed United Nations Security Council Resolution 556, proposed by the United States, which explicitly acknowledges that Coalition forces shall exercise the authority and obligations of occupying powers.

For U.S. practitioners, the two primary sources of international law related to belligerent occupation are the Hague Convention of 1907, and the Fourth Geneva Convention of 1949. As in any area of international law, the rules of customary international law and provisions of other treaties also impact upon practice. However, these two treaties remain the primary sources of authority.

Both the Hague and Fourth Geneva Conventions codify several fundamental principles of belligerent occupation. First, the occupying force acts as a 鍍emporary bailor over the occupied territory, not as a truly 渡ew government. The law of belligerent occupation explicitly rejects the notion that the ultimate status of occupied territory can be altered by the occupation. Instead, the occupying force is responsible for establishing what amounts to a 都ubstitute government in the territory. Stemming from this principle is the requirement to endeavor to maintain, and rely upon to the greatest extent feasible, local government and civil administration institutions and capabilities. In short, the law of occupation is built on the premise that the disruption to the occupied society can be minimized, and the needs of the occupying force can be best served, by allowing the normal function of government and society. This includes allowing local law to remain in force. The execution of this principle was illustrated by U.S. commanders calling for a return to duty of Iraqi law enforcement personnel. These individuals maintain basic law and order through application of certain laws that existed at the time of the regime collapse. This principle is also reflected in the efforts being made by military lawyers in Iraq to reconstitute the Iraqi criminal justice system by enlisting the support of judges and lawyers determined to be sufficiently reliable to carry out their legal duties. While an occupying commander is authorized to displace local law when it conflicts with the requirements of mission accomplishment, or when it does not contribute to the maintenance of order and security, as a general proposition it is far more efficient to rely on pre-occupation law and law enforcement institutions than to impose an entirely new legal regime in the occupied territory.

Of course, the mission requirements of an occupying force may require modifications or additions to the local law. In recognition of this reality, the law of occupation empowers the occupying commander to establish rules and regulations within the occupied territory necessary for the maintenance of order and the protection of the occupying force. According to the Fourth Geneva Convention:

The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.

Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.

The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.[1]

Obvious examples of rules that might fall into this category include curfews, prohibitions against entering certain areas, prohibitions against the trade in certain regulated goods, and establishment of penalties for disobeying the orders of occupying forces. But whenever feasible, the commander should attempt to apply pre-occupation law to meet mission requirements. Thus, the law of belligerent occupation envisions a process whereby an occupying commander, serving as the de facto governor of an occupied area, establishes a legal 田ode of conduct for the inhabitants of the occupied area, intended to protect the interests of both the occupying forces and the local inhabitants. This 田ode is based primarily on pre-existing local law, and supplemented by occupation orders when the commander determines that local law is either inconsistent with his or her objectives, or ineffective in contributing to the achievement of those objectives.

The occupation provisions of the Fourth Geneva Convention, drafted in the aftermath of the Second World War by delegations from many nations that suffered under Axis occupation, represented a marked departure from past practice in the detail in which the rules of occupation were articulated. A review of these provisions illustrates a point emphasized by Jean Pictet in his Official Commentary to the treaty: that the drafters objective was to strike a legitimate balance between the rights of the inhabitants of the occupied territories and the needs of the occupying force. In the area of 斗aw and order, this balance is reflected in the requirement that the occupying force follow certain 電ue process type procedures in the implementation of its 田ode of conduct. Central to this implementation is the requirement to endeavor to keep in force as much local law as is feasible the most effective method of ensuring the inhabitants of the occupied territory have notice of the rules that apply to their conduct. Other procedures designed to ensure the inhabitants are placed on notice that certain conduct is prohibited include the requirement to publish any modifications or additions to the pre-occupation criminal code, the requirement that all such notices be published in the language of the occupied territory, and the establishment of a procedure whereby a neutral state (or in common practice, the International Committee of the Red Cross) may act as a 撤rotecting Power,納2] with the functions of monitoring the occupying power痴 observance of the Convention, and suggesting appropriate modifications of procedures or policies to improve the degree of such compliance.

An equally significant aspect of establishing and maintaining order in an occupied territory is the mechanism the occupying power uses to enforce the established rules and regulations governing the conduct of the territory inhabitants. Once again, use of pre-occupation law enforcement and judicial organs is a logical technique to accomplish this goal, and indeed, when this approach is feasible from the perspective of the military mission, the occupying commander should do so. However, practitioners and commanders should bear in mind that this approach is not without problems.

First, law enforcement and judicial institutions must be sufficiently intact to function effectively. Whether or not this is the case will often depend on the nature of the military operations preceding the occupation. Modern history, and in particular the Second World War, includes numerous examples of areas that came under enemy occupation with little or no pre-occupation resistance, and in such areas, local institutions were often allowed to continue to perform their basic functions. However, the pre-occupation conflict may disable or temporarily disrupt these institutions, in which case they could only become effective after re-constitution.

Second, even if intact, these institutions may be inclined to 菟assively resist the role the occupying commander intends for them to play. This resistance may be the result of patriotic motivations, concerns over the source of compensation, or a combination of these and other possible factors. The Fourth Geneva Convention does not permit the occupying commander to force public officials to work against their moral objections, so in such a situation, the commander would be faced with an intact but unavailable work force. A more troubling situation would arise in the event the 菟assive resistance was to take a more subtle form, whereby workers would attempt to undermine the efforts of the occupying commander by 都elective fulfillment of their obligations as public servants. In such a situation, the commander may find it necessary to remove such workers even though they proclaim an intent to perform their pre-occupation functions.

The third potential problem with reliance upon local institutions arises from the inter-relationship between the law of belligerent occupation and international human rights law: would reliance on pre-occupation law enforcement and/or judicial institutions amount to condoning continued violations of fundamental human rights? According to the Restatement of Foreign Relations Law of the United States, a state is in violation of fundamental human rights when it 菟ractices, encourages, or condones activities such as murder; torture; cruel, inhumane, and degrading treatment; and prolonged and arbitrary detention. While as a matter of national practice, the United States takes the position that compliance with the law of armed conflict, as required by international law and Department of Defense policy, effectively ensures that the Armed Forces of the United States act consistently with such fundamental human rights obligations at all times, utilization of local law enforcement and judicial institutions may require a more precise analysis of compliance with these fundamental human rights.

It is no secret that the Iraqi regime relied upon many of Iraq's law enforcement and judicial institutions to maintain their totalitarian control over the population of Iraq. This fact has become ever more apparent since the collapse of the regime. As a result, Coalition commanders must exercise prudence regarding the credibility of these institutions, both from the perspective of the occupying command, and of the local populace. Reliance on these institutions without a careful vetting of their pre-occupation fidelity to fundamental human rights could have disastrous consequences. These consequences might include a public perception that the United States condones past misconduct, encourages future misconduct, and fails to demonstrate a commitment to the human rights of the population. It could also severely undermine the credibility of the occupying command in the eyes of the local populace, a credibility which will be essential to establish in order to minimize the challenges related to the occupation. Recent reports highlighting the efforts of Coalition Judge Advocates to work with local Iraqi legal professionals in an effort to restore legal institutions in a manner that respects fundamental human rights is not only evidence that such concerns do indeed exist, but perhaps more importantly, evidence of the Coalition痴 commitment to respect fundamental human rights in this restoration process. Such activities are in accord with the spirit and intent of the law of belligerent occupation.

These factors all highlight the reality now confronted by Coalition commanders in Iraq: that exclusive reliance on local law enforcement and judicial institutions may not be feasible to meet the needs of the occupying force and serve the interests of reconstruction. As a result, the occupying commander must be prepared to employ alternate methods for ensuring rule of law. One such 殿lternate approach is established in customary international law, and implemented through the Uniform Code of Military Justice: the use of military tribunals.

Until recently, the concept of the 杜ilitary tribunal could have been considered dormant among U.S. military practitioners. However, the concept of relying on military tribunals to maintain law and order in an area under belligerent occupation is well established under customary international law, and explicitly recognized by law of war treaties such as the Hague and Geneva Conventions. However, because of the nature of U.S. military operations subsequent to World War II, the relevance of this tool became minimal. The events of September 11th altered dramatically this situation, by resurrecting the military tribunal as a venue for prosecuting terrorists and individuals who violate the laws of armed conflict. While the decision to rely on such tribunals has generated a great deal of attention and debate, there has been very little focus on the potential use of military tribunals in post-conflict Iraq.

The debate over the 敵uantanamo military commissions has created a perception that 殿ll military tribunals are created alike. This perception is false. The term 杜ilitary tribunal, in U.S. military practice, refers to a number of distinct tribunals available to military commanders charged with the responsibility to either try alleged war criminals or enforce the rule of law in an occupied territory. This term includes the General Court-Martial (hereinafter GCM), as established by the Uniform Code of Military Justice[3]. When analyzing the jurisdiction of the GCM, it is essential to focus on both the jurisdiction over the person and the jurisdiction over the offense. Jurisdiction over the person is established primarily by Article 2 of the U.C.M.J., which applies to members of the armed forces and other limited categories of individuals who accompany the armed forces. These individuals are subject to the entire U.C.M.J., which includes the punitive articles normally relied upon to try service-members for misconduct[4]. However, Article 18 of the UCMJ indicates that "[g]eneral courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war."[5] As is evident from this language, this grant of jurisdiction is not limited by the nationality of the accused, the nationality of the victim, the military status of the accused, the parties to the conflict in which the offense was committed, or the time when the offense was committed. The only predicate to trigger this grant of jurisdiction is that the act in question be a violation of the law of war,[6] and that the law of war provide for individual criminal responsibility for such a violation. Clearly, this provision empowers U.S. commanders to utilize the GCM for the trial of any individual alleged to have committed a violation of the law of war (there is also a predicated requirement that the alleged violation is made punishable by the law of war; as a practical matter, this requirement is satisfied in Iraq under both the customary and conventional law of war for virtually every conceivable offense).[7]

While it may be difficult to imagine the prosecution of Iraqi nationals before a U.S. GCM in Iraq for violations of the law of war, this is not only authorized by domestic (U.C.M.J.) and international (law of war) law, but may be a practical solution to resolve cases of serious misconduct. In this regard, it is critical to understand that the Article 18 reference to the 斗aw of war includes not only those provisions of the law of war that regulate combat, but also to the law of belligerent occupation. As a result, Article 18 has the effect of vesting the GCM with jurisdiction to try offenses committed by local civilians during a period of military occupation. Subject offenses can include violation of local laws remaining in effect by leave of the occupying commander, and violation of occupation orders properly promulgated by the occupying commander.

This potential use of the GCM to try violations of local law during a belligerent occupation, is illustrated by the provision of the Rules for Court-Martial (rules of procedure for courts-martial promulgated by the President pursuant to the authority delegated to him by Congress in the UCMJ to establish such rules) establishing procedures for properly charging offenses to be brought before such courts. Rule for Court-Martial 307 (c), (How to allege offenses) indicates that 殿 charge states the article of the code, law of war, or local penal law of an occupied territory which the accused is alleged to have violated (emphasis added). It also provides an example of exactly how such a charge should be drafted. While, as indicated supra, the Fourth Geneva Convention establishes a clear preference for the use of local courts to deal with violations of local law during occupation, this provision represents a recognition that such an option may not always be viable.

Should the United States choose to adopt the policy of authorizing the use of this legally permissible venue for prosecuting offenses related to both the conflict and the occupation, there could be several possible advantages. First, any commander vested under the UCMJ with the authority to convene a GCM may do so. In layman痴 terms, this normally means general officers in command. In Iraq, Division, Corps, and Marine Expeditionary Force Commanders could all serve as GCM convening authorities, allowing such proceedings to take place in multiple areas. This complies with the Fourth Geneva Convention (protection of civilians during belligerent occupation) requirement that such trials be held in the occupied territory when the charge is a violation of an occupation directive:

In case of a breach of the penal provision promulgated by it by virtue of the second paragraph of Article 64 (occupation directive), the Occupying Power may hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country.納8]

In addition to providing the flexibility to establish tribunals for dealing with misconduct throughout Iraq, use of the GCM would carry the benefit of providing a tribunal with well-established procedures, familiar to prosecutors, defense counsel, and military judges. While the charge and the accused brought before such courts might be novel, the procedures would not. Such courts would be convened in accordance with the UCMJ and the Rules for Courts-Martial, and all trials, appeals, and issues related to the court would be governed by these rules, and the Military Rules of Evidence. Use of a tribunal with such well-established and legally valid procedures would ensure compliance with the procedural protections afforded any accused by the Fourth Geneva Convention, which requires that:

Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.

Failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.

Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both during preliminary investigation and during the hearing in court. They shall have the right at any time to object to the interpreter and to ask for his replacement.[9]

Provision of a detailed trial defense attorney and interpreters is authorized by the U.C.M.J., the RCM, and service regulations implementing these authorities.

One aspect related to the trial of local civilians or prisoners of war before a GCM that could be considered particularly controversial is that such courts would be composed of U.S. military personnel. Such personnel would be selected to sit on the court (jurors) according to the same statutory criteria used to select members for the trial of a U.S. service-member established by Article 25 of the U.C.M.J., which has been determined to ensure a fair and impartial jury by U.S. military and civilian appellate courts. However, such a court could in no way be considered a 屠ury of peers for local civilians. While no international legal authority requires that an occupying power utilize a jury of the accused痴 peers, or even utilize a jury at all,[10] the risk is that a panel comprised of U.S. military personnel would create the perception of 砺ictor痴 justice if used to try prisoners of war accused of pre-capture violations of the law of war. Such perceptions could probably only be dispelled through the actions of such courts demonstrating the fairness and integrity of their procedures. Indeed, many military practitioners would probably assert that such courts hold the greatest hope of fair and impartial trials due to the commitment military court members routinely demonstrate to executing their duties as court members. While the results of such cases would benefit from the regularly established appellate review provided for by the UCMJ and the RCM痴, public and international legal judgment of the legitimacy of this method of dealing with cases of misconduct would very much depend on the transparency of the process and the commitment of the participants to implementing the established purpose of the military legal system: to ensure justice is done, and thereby contribute to mission accomplishment.


* The views and opinions expressed in this article are those of the author and are not those of the Department of the Army, or any other agency of the U.S. Government.
[1] Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, August 12, 1949, art. 2-3, T.I.A.S. 3365 [hereinafter GC], Art. 64, reprinted in Department of the Army Pamphlet 27-1, TREATIES GOVERNING LAND WARFARE, (December 1956).
[2] A 撤rotecting Power is a nation, or more commonly the ICRC, which acts as the 電e facto national sovereign to act on behalf of victims of war who, due to the conflict, are unable to avail themselves of the protection of their own governments. It is established in the four Geneva Conventions of 1949, and is a central concept to the protection of victims of war by ensuring that some power is responsible for monitoring compliance with the law of war applicable to such victims. In the case of a belligerent occupation, such a power would be responsible for monitoring compliance with the law by the occupying power, and advocating on behalf of the indigenous population when there rights under the law of war were jeopardized.
[3] The basic statutory authority for all military law in the United States, established by Congress pursuant to the authority vested in Congress by Article I of the U.S. Constitution to both 杜ake Rules for the Government and Regulation of the land and naval forces and to 電efine and punish . . . Offenses against the Law of Nations. (hereinafter U.C.M.J.).
[4] United States service members are commonly known as persons subject to the code, meaning the Uniform Code of Military Justice (U.C.M.J.). Article 2 (U.C.M.J.) "Persons subject to this chapter" lists those persons who are subject to the U.C.M.J. 10 U.S.C.S. ァ 802 (LEXIS 2000). Those listed are usually referred to as people in a Title 10 status. Those in a Title 10 status are subject to a general court-martial [NOTE: inconsistent capitalization above, you capitalize the term] under clause 1 of Article 18. 10 U.S.C.S. ァ 818, cl. 1 (LEXIS 2000). Clause 1 states: "Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter." Id. Section 817 (Article 17) states, in part, "Each armed force has court-martial jurisdiction over all persons subject to this chapter." 10 U.S.C.S. ァ 817(a) (LEXIS 2000). Foreign nationals and U.S. citizens not listed in Article 2(a)(1) through 2(a)(12) are not subject to the code and therefore are not subject to a general court-martial under clause 1 of Article 18. Article 18, clause 2, however, is not subject to the same limitations as clause 1; that is, it is not limited by Article 2, U.C.M.J. See 10 U.S.C.S. ァ 818, cl. 2 (LEXIS 2000). As used throughout this paper, the phrase 渡on-U.S. service members refers to persons not listed in Article 2, U.C.M.J; that is, those persons not in a Title 10 status.
[5] 10 U.S.C.S. ァ 818, cl. 2 (LEXIS 2000).
[6] As a practical matter, this requirement is satisfied in Iraq under both the customary and conventional law of war for virtually every conceivable offense.
[7] Article 21 of the UCMJ also identifies other types of military tribunals that may be available to military commanders: military commissions and provost courts. Article 21 also indicates that this list is not exclusive, and that other military tribunals may be established that have concurrent jurisdiction with courts-martial when such tribunals are granted such jurisdiction by statute or by the law of war.
[8] GC, supra note 1, at Art. 66.
[9] Id. at Art. 72.
[10] The concept of trial by jury is familiar to those from nations having a Common Law tradition; however, trials by judges or panels of judges is the norm in nations following the Civil Law tradition.


Lieutenant Colonel Geoffrey S. Corn is Chief, International and Operational Law, Office of the Judge Advocate, U.S. Army Europe.

May 29, 2003

GUEST COLUMNIST

JURIST Guest Columnist Lt.Col. Geoffrey S. Corn is Chief, International and Operational Law, Office of the Judge Advocate, U.S. Army Europe. He previously served as a Professor of International and Operational Law at the Judge Advocate General痴 School in Charlottesville, Virginia. He is a graduate of Hartwick College and the U.S. Army Command and General Staff College, and earned his J.D. at George Washington University and his LL.M. at the Judge Advocate General痴 School.