The Legal Environment for Ground Forces - Integrated Defence Staff

FOREWORDIn his famous book, Law in Wartime and Peacetime, Grotius wrote “ a famous Roman general pretendedthat the clamor of the battlefield kept him from hearing the voice of the law. ” In 1625,Grotius added that “ nothing is more common than putting law and weapons at odds ” - this is aserious error.Would any of our soldiers questionthat today ? The soldier isat odds with many issues : theexpansion of international laws ; themultiplicity and swelling of internationalregulations ; the confrontation ofheterogeneous national laws within complexmultinational consultations ; thediversity and types of new missions foreignto accepted norms of the Law of LandWarfare ; the permanent obligation tojustify his actions in front of the publicopinion. All parties, on a permanentbasis, scrutinize the daily actions of soldiersagainst the law.Law can sometimes be used as a flag.It can also be used as an instrument toserve a party. On the other hand, withoutit, no action can be legitimated.As a matter of fact, what law gives a soldierthe extraordinary permission to useviolence ?Further, what law allows him to interveneoutside of his own borders ?Lastly, what law allows him to silencethe guns in foreign lands ?It is vital that the officers leading an armythat deploys 10,000 to 15,000 soldiersin out-of-area operations on a constantbasis become aware of the legal frameworksurrounding their actions. Recentstudies carried out by the commissionon the general status of the military havedemonstrated the magnitude of theseissues.I am pleased to take notice that“ Doctrine ” has dedicated this editionto this problem. It is also important toobserve that this deliberation is not limitedto the personnel of the legal directorate.I trust that this study will be fruitful.Because without law, there is neitherState of legitimacy nor democracy, andas Pascal wrote : “ force and justice coexistto ensure peace, the overarchingwealth. ”CCH J.J. CHATARD/SIRPA TerreCatherine BERGEAL,Senior Legal Counsel, Council of StateDirector, Juridical AffairsSEPTEMBER 2004 4 DOCTRINE # 04

doctrineThe Commander’sIndispensable Freedom of ActionBecause of the increasing number of overseas deployments, French soldiers are often confronted to a new problem :the frequent lack of a clearly defined legal framework. Sometimes, as a corollary to that issue, some (fortunately veryfew) soldiers fall into legal problems. This has caused the legal protection of the soldier in overseas (out-of-area)operations to be a particularly sensitive topic in the course of the last few years. Members of the Armed Forces(particularly of the Army) have developed a mounting feeling of distrust and sometimes fear of national andinternational judiciary institutions because of the increasing role of the legal issues within western societies,growingly prominent in France. As such, they rightly refuse to receive the attention of the justice for having used forcewhile obeying a national order.Somehow, the reality of this possibility causes a “ feeling of legal insecurity ” 1 . The resulting psychological effectscan cause some subordinates to become faint-hearted or even turn some leaders into inaction, or even to declineresponsibility.However, this aversion to risk-taking (the fear of the possible consequences of the decisions taken at the timeof events - especially when they are highly publicized in the media) can inhibit certain leaders’ action at all levelsof command and thus limit their necessary freedom of action. This freedom is essential for the proper execution ofthe missions that they were entrusted with by the Nation - within the framework, or not, of an international or localorganization.BY GENERAL (RET) JEAN-MARIE VEYRAT, EDITOR OF “DOCTRINE ” MAGAZINECCH J.J. CHATARD/SIRPA TerreHence, this premiseestablishes that the legalframework of their actionshould be clearly definedby the authorities in charge,in particular by the politicalauthorities that have setthe operational objective.First and foremost, theformulation of the desiredend-state and the rules ofengagement (ROE) must bespecified. The description ofthe legal framework shouldgo well beyond the chieflytechnical opinions renderedby legal specialists who arenot always well aware ofthe realities on the ground.With the necessary freedomof action and the associatedconfidence which will havebeen granted to them, themilitary commanders willthen be able, at all levels ofthe hierarchy, and withinthe joint and generallymultinational framework ofan operation, to detail thedirectives received, and togive orders and guidance.All this in accordance withthe doctrine of employmentof the French forces, whichremains, for our units andstaffs, the best protectionbecause they are thesynthesis of internationaland national rules that areto be applied by the armedforces of a democraticcountry.ARMED FORCES CONDUCTINGOVERSEAS (OUT-OF-AREA)OPERATIONS ARE CONFRONTED TOLEGAL ISSUES LINKED TO THEIRACTIONS, INCLUDING POTENTIALPENAL CONSEQUENCES.The often speedy initiationof operations generallyprevents from assigning foreach a specific and preciselegal framework, welladapted to the theatre andthe types of actions to becarried out. On the contrary,there is usually asuperposition ofinternational, national, andlocal laws, which does notfacilitate the task of thosewho are to ensure that thoseregulations are respected.They are magistrates, policeofficers, provosts, and theyoften choose to apply the lawthat they know best, ingeneral the national law,which, in any event, remainsapplicable to the Frenchnationals. This national law,designed to be internal, isoften badly adapted to ourunits’ framework of action,which is neither peace norwar, but rather some sort ofundeclared conflict or acrisis. These situations areSEPTEMBER 2004 5 DOCTRINE # 04

The Statutory Recognitionof Service Members Involvedin Overseas OperationsThe national law is the legal basis for the action of the service member in overseas (out-of-area)operations. Even in a foreign country, “ in all times and places ” (article 12 of the statutes),the soldier exclusively falls within the scope of national law. This legal recognition results from aset of provisions mainly articulated around the general statutes of the service member ; criminallaw and the military justice code (article 27 of the statutes) ; the 6 of August 1955 law pertaining tothe advantages granted to military personnel involved in maintenance of law and order operationsunder certain circumstances; and the pension code (article 20 of the statutes).This legal recognition does not however particularly distinguish overseas operations as an actiondeparting from common law : on the contrary, soldiers are “ subject to common criminal law aswell as to the provisions of the military justice code ” (article 27 of the statutes). As professionalsoldiers, they benefit from a risk cover and a compensation right (articles 20, 58, 59 et 60 ofthe statutes) for recorded disabilities “ resulting from or occurring during service ” (articles L2 et L3of the disability military pension code).BY COLONEL GUILLAUME DE CHERGÉ, LEGAL ADVISER OF THE SOUTH-WEST ARMY REGIONLegal Recognition Vs.the Reality of OverSeasOperationsSo, the legal recognitiongiven by the statutes is notadapted to the ambiguousreality of overseasoperations. In fact, overseasoperations are notnecessarily war operationsbut, most frequently, the wayto bring to an end an armedconflict that does not have aninternational nature,and without the projectedforce having to take anactive part in the conflict.Therefore, the servicemember is exposed toexceptional risks.The legal misapprehensionof these risks can affect andturn the responsibilitysystem in overseasoperations into an ordinary,especially in the followingareas :- the assimilation of therecourse to force to thecase of action in selfdefensefor oneself or forothers ;- the professionalmisconduct madeimprudently or followingnon-action, especially incases of emergency orfailure to assist a person indanger ;- the evaluation of damagesencountered or made inconnection with its link toservice ;- the always possibleopening of a preliminaryinvestigation against amilitary based on adenunciation.Thus, the personal natureof the action of the soldierdetermines the level ofresponsibility : militarypersonnel benefit fromState protection as soonas he “ is subject tocriminal prosecutionsresulting from facts whichdo not have a nature ofpersonal misconduct ”(article 24 of the statutes).This personal nature alsoappears in the judicialproceedings when thesoldier is summoned aswitness of incriminatedfacts. These proceedingsdisregard the statutorylink to retain one criminaloffense nature concerningthe carried out action.Widening of the Self-Defense Concept to theFramework of the MissionThe revision of the militarygeneral statutes, as itappears in the draft 1 , sticksto the principle of the individualityof the service memberin overseas operations.However, it is aimed atenhancing the statutorywarranties (article 1 of thestatutes) in accordance withthe general legal principles.If the soldier cannot claimimmunity resulting from thefact that he is acting inoperations and followingorders, he can benefit nowfrom a positive judicialqualification of his action, ina follow-on criminalproceedings connecting hisactions to service.DOCTRINE # 04 8 SEPTEMBER 2004

doctrineCCH J.J. CHATARD/SIRPA Terrefor the Senate. As thenstressed by Professor GuyCarcassonne : “ Indeed andas, everybody knows, thisvote was not legallyindispensable. It was not anauthorization ; it was thecase of a confidence motionon a precise issue. It was notat all indispensable for theCommander-in-Chief of theArmies to legally be able tocommit France in thisconflict. ”Such a power given to theParliament would require aconstitutional change.During the debate, withoutvote, on Kosovo, which tookplace on April 1999 in thenational Assembly, thePresident of the DefenseCommission, in this sense,expressed the wish that theGovernment would ask forthe authorization ofParliament beforecommitting troops overseas.The Prime Minister thenjudged that article 35 of theConstitution was not to beapplied but stated, “ the caseof a military engagement onthe ground could not beenvisaged, unless thequestion is submitted to you.You would be formallyconsulted to authorize, ornot, thanks to a vote, such anintervention ”.All in all, the internalframework of overseasoperations seemed to bewell established. Accordingto the Constitution, it is forthe Parliament to authorizethe declaration of war. Otheroverseas operations fallunder executiveprerogatives. In the later, theinformation modalities of theParliament have howeverbeen reinforced. Thus,Defense Minister AlainRichard, announced fourmeasures on February 4,1999 :- the preparation of a yearlyreport from the defenseministry for the Parliamenton overseas operations ;- a debate on this report andthese operations duringsub-appropriationdiscussions ;- a presentation, to thedefense commissions of theNational Assembly and theSenate, of the objectives ofoverseas operations withinthe month following theirstart ;- a visit trip, once every sixmonths, of MPs belongingto defense commissions toarmed forces in overseasoperations.The International LegalFramework of OverseasOperationsWhile the October 4, 1958Constitution provides for thehypothesis of a declarationof war, it also refers to thePreamble of the October 27,1946 Constitution whichstates that “ the FrenchRepublic will not embarkupon any war in view ofconquest and will never useits forces against the libertyof any people ”. Thisprovision is contemporary tothat of the United NationsCharta, signed on June 26,1945 and implemented onthe following October 24.The Charta dispositions buildup the international legalframework of recourse toforce.Article 2, paragraph 4 of theCharta states that “ in theirinternational relations themembers of the Organization(of the United Nations) refrainfrom resorting to the threator use of force, either againstthe territorial integrity or thepolitical independence of anyState, or in any other wayincompatible with the aims ofthe United Nations ”. In thisway, the Charta sets out ageneral principle ofprohibition of recourse toforce, still keeping thelegality of such recourseunder certain circumstancesor in view of certainobjectives.The first exception to thisprohibition is well known : itis the one stated in article 51of the Charta concerning the“ national self-defense right,individual or collective,should a member of theUnited Nations have to facean armed aggression, up tillthe Security Council hastaken the necessarymeasures in order tomaintain international peaceand security ”. At first sight,this disposition seemssimple by setting out theprinciple of self-defense.However, in legal terms oneknows that the absence of ageneral definition of“ aggression ” doesn’t solveall the difficulties raised byarticle 51 of the Charta. Inface of the sole 3314resolution of the UnitedNations General Assemblypassed in 1974, aggressioncan, today, only be definedas the intervention of theSecurity Council. Failing suchan intervention, which since1945 has only occurred onceat the time of the “ war inKorea ”, states areauthorized to use theirlegitimate self-defense rightup till it has reached itsobjectives. The conduct ofmilitary operations beyondwhat is necessary to repelaggression is not authorizedby this defense.The United Nations Charta, towhich article 2, paragraph 4refers to, sets out a secondexception to the prohibitionof the recourse to force. It isthe one contained in articles42 and 53 pertaining tocollective action taken inview of facing a threatagainst peace, a break ofpeace or an act ofaggression. Article 42, andmore generally chapter VII ofthe Charta to which itbelongs, are legitimatelyseen as one of the cornerstones of the UN structure.These dispositions haveencountered a sharp revivalin their employment with theend of the cold war. Theconcerned resolutions didnot however contain explicitdispositions on recourse toforce, as in most cases, theSecurity Counsel prefers toSEPTEMBER 2004 11 DOCTRINE # 04

use a formulation enablingthe States participating in aforce to take all necessarymeasures in order to fulfilltheir mandate. Such awording should beunderstood in an extensiveway and include recourse toforce.Several examplesemphasize the restraint inwords of the SecurityCouncil resolutions, in whichthe “ recourse to force ” isonly mentioned in resolution169 dated February 21, 1961for the UNAPROC in Congo.After that, for Somalia,resolution n° 794 datedDecember 5, 1992authorized, in accordancewith chapter VII of theCharta, the United TaskForce Somalia to use “ allnecessary means to imposesecurity conditions forhumanitarian operations assoon as possible ”.In Rwanda, France wasauthorized by resolutionn° 929 dated June 22, 1994to use “ all necessary meansto reach the humanitarianobjectives ”. In Haiti, themultinational force wasauthorized based on chapterVII, thanks to resolutionn° 940 dated July 31, 1994to “ use all necessary meansto facilitate the departure ofthe military leaders ”.As far as East Timor isconcerned, the Intal Force inEast Timor is authorized to“ take all necessarymeasures to fulfill itsmandate ”.Irrespective of self-defenseand of collective actionunder the United Nationsumbrella, these last fifteenyears have seen thedevelopment of a trendadvocating another basis forthe use of force, that of the“ right of humanitarianinterference ”. Beyond themoral requirement of facingdistress situations, oneshould question theintegration of this current inaffirmative law.On one hand, the classicinternational law hasacknowledged since longago the right for a State toensure the protection of itscitizens overseas in certaincircumstances. This isthe meaning of Max Huber’ssentence, President ofthe IJPC, in 1924 concerningBritish holdings in Morocco.However, law preciselyrestricts this stateprerogative, as it directlyjeopardizes the sovereigntyof another State.The intervention forthe benefit of one’s citizensmust notably be strictlynecessary andproportionate.“ The right of humanitarianinterference ” aims at goingfurther than to this stateright of saving its citizens.However, it fits into aninternational law based onthe sovereignty of States.In this way, in 1946the International Court ofJustice in the Straits of Corfuaffair ruled that “ the allegedintervention right can onlybe envisaged ... as thedemonstrationof a force policy, policy whichin the past, has givenplace to the worst possibleabuses that, whateverthe present deficiencies ofthe international society,may be, should find noplace in international law ”.Humanitarian law faithfullyreflects this orientation.Thus, article 3 of protocol IIof 1977, added to theGeneva Conventions on noninternationalarmed conflictsfurther explains that “nodisposition of the presentprotocol should be invokedas a justification for a director indirect intervention,whatever the reason maybe, in the armed conflictor in home or foreignaffairs of the other signingparty on the territory ofwhich the conflict occurs ”.Today, some voices arerising to criticize thisaffirmative right, essentiallyin European democracies.Their claim for ahumanitarian interferenceright is notably rejected bya great deal of SouthernStates. Hubert Védrine,French Foreign Minister,analyzes this situation inanswering Dominique Moïsi :“ The right of interferenceyou are speaking about is ofconcern for numerouscountries, as who interferes ?Always the same countries !I believe it is advisable topreserve the sovereignty ofStates... We have difficultiesin assessing what it stillrepresents, for a greatmajority of UN MemberStates, in terms of dignity,national identity, andprotection against a worryinginternationalization. I wouldlike to add that, contrarily toan accepted idea, moreproblems emerge due to theweakness of a certainnumber of the 189 UNMember States and not fromtheir excessive strength.”This structuring of theinternational society doesn’tjeopardize for States, inaffirmative right, the meansof action in order to facehumanitarian distresssituations. While article 2,paragraph 7 of the Chartastates that “ no dispositionof the said Charta authorizesthe United Nations tointervene in matters whichessentially fall under thenational competence of aState ”, it further states, infact that “ this principledoesn’t jeopardize theimplementation of coercionmeasures stated forth inchapter VII ”. It is on thisbasis that operation“ Render Hope ” in Somaliahad been decided in 1992.Of course, it has been thesame for Former Yugoslaviaand the United NationsProtection Force from 1992onwards. Examples are nownumerous : Cambodia,Angola, Haiti, Rwanda, andTimor...The legal framework ofoverseas operations is bothnational and international.As far as national law isconcerned, it refers to theprerogatives of thelegislative and executivepowers. The first oneauthorizes the declaration ofwar ; the second one haswide prerogatives necessaryfor overseas armed actions.As far as international law isconcerned, the UnitedNations Charta defines aprecise framework thatprohibits recourse to armedforce but may authorize it incase of self-defense orcollective action.Such collective actions,under the United Nationsumbrella, are the necessaryanswer to dramatichumanitarian situations invarious countries of theworld. However, after theirdevelopment in the early90’s, such operations arenowadays less numerous.Undoubtedly, the cause forthis is notably to be soughtin the critics that areimmediately aroused byinactive countries. Thisapparent paradox goes farbeyond the analysis of thelegal framework of overseasactions, but also underlinesthat it is not incomplete.Within the United Nationsand when they want it,States have the means toact in order to face violenceand distress.DOCTRINE # 04 12 SEPTEMBER 2004

doctrineThe Protection of Service MembersDuring Operations AbroadOverseas operations are an essential activity of our forces. The purpose of the proposed reflection isto look into the juridical environment of French service members during operations conductedabroad (or out-of-area).In this regard, it is not considered to be adequate both with respect to the successful conduct of missionsand the medical and social coverage. However, room for improvements exist.It is acknowledged that an overseas operation is an operation of a humanitarian nature that can only beconducted after re-establishment (or imposition) of a minimum public order enabling acceptable livingconditions for the population. All this being often complicated by the obligation to separate - or imposejoint-living - of populations whose liking or respect for others is not the primary concern.The action of the soldiers lies within a crisis framework, of a variable intensity (intensity levels are likelyto change very rapidly). The recourse to armed force cannot be excluded; if this happens, is the Frenchservice member sufficiently legally protected ? Protected, yes; sufficiently, no. Let’s be quite clear aboutthis : we are not talking about making him impune. The present situation can nevertheless be improved,whilst leaving the completeness of his attributions to the criminal judge.BY COLONEL GILLES BERNARD (ADMINISTRATION), LEGAL AFFAIRS CELL, FRENCH JOINT STAFFThe Service Member andthe Use of Armed Forceon Overseas OperationsBasic Principle : it is theFrench Law that isApplicable.But in fact, in many cases,an overseas operation hasa multinational nature ; thecommander of thisoperation issues ROEs(Rules of Engagement). Itwill be admitted that theseROEs do not raise any legalissues vis-à-vis the armedconflicts legitimacy and law.The problem is that theseROEs are not a legislativeor regulatory disposition inFrench law that are imposedto the criminal judge.In case of possible criminalproceedings, the use ofweapons will be scrutinizedCCH J.J. CHATARD/SIRPA Terrein accordance with thecriminal code provisions,in the light of “ selfdefense” and the level of“ necessity ” ; that’s quiteusual, although thesenotions have beendeveloped taking intoaccount a democratic and“civilized ” society, asituation which is scarcelyencountered duringoverseas operations.However, article 16-1 of thegeneral statutes of thesoldiers imposes to check“ whether the normalconscientiousness, takinginto account theresponsibilities, powersand assets they areendowed with, as well asthe very specific difficultiespertaining to the missionsthey are entrusted by law ”,have been correctlyimplemented. The fact ofnot acknowledging theexistence of the ROEs doesnot enable a completeadherence to the provisionsof this article. In order tobe able to reconcile thepossible action of thecriminal judge with article16-1 of the military generalstatutes it is thereforenecessary to make roomwithin our legal system forthe ROEs.On one hand, the FrenchState acknowledges thatservice members cancomply with the ROEslegitimately issued by asupranational authorityand, on the other, that itscriminal justice does notrecognize them.The review commission ofthe soldier general statuteshas proposed that theSEPTEMBER 2004 13 DOCTRINE # 04

following provision beadded to the militaryjustice code : “ the servicemember is not criminallyliable , when, inaccordance withinternational law provisionsand within the frameworkof a military operationtaking place outsidethe French territory, heexercises coercionmeasures or uses armedforce when it is necessaryin order to fulfillthe mission ”.Although this proposal isa real step forward, itshould however go furtherand specifically quotethe ROEs.This is not aninsurmountable legaldifficulty and would likelyenhance a more sereneclimate for action withoutjeopardizing in any waycriminal justiceprerogatives.The Medical and SocialCoverageThis development will onlydeal with theacknowledgment ofincapacitatingconsequences in relationwith their possible link toservice. Although the 1955law provisions (imputabilitypresumption, reduction ofthe disability limit downto 10%) are systematicallyextended to overseasoperations, this has notavoided problemspertaining to theimputabilityacknowledgement inconnection with theexecution of service.In fact, certain casesconnected to this issuehave created a strongemotion in the militarycommunity. Althoughthe outcome of thesecases was in favor ofthe plaintiffs,the closing stages neededlengthy and fastidiousproceedings for situationsrather commonly facedby personnel duringoverseas operations.It is not the case ofreviewing these litigations ;it is just a matter ofstressing the difficulty toappreciate the connectionof certain activities with“ service ”.Two Situations Should beCarefully Scrutinized.The first one encompasseswhat we call “ day to dayactivities ”. Althoughthe service member is led“ to serve anywhere ”,he does not have the legalprotection recognizedby the Court of Cassationrecognized to employeescarrying out a mission(appeal n°285 dated July19, 2001 ; appeal n° 133dated April 2, 2003 ;Social Chamber ; “ butconsidering thatthe employee carrying outa mission benefits fromthe protection stated forthin article L.411-1 of theSocial Security Code duringthe duration of the missionhe carries out forthe benefit of his employer,it does not matter whetherthe accident occurs duringa service connectedmission, or not, withthe exception for theemployer or the SocialSecurity to bring evidencethat the employee hadinterrupted his missionfor a private reason ”).The second one coversrecreational activities,essentially tourism trips.This situation mayundoubtedly change fromone theater of operation toanother ; it cannot howeverbe ignored.It is considered that takinginto account the Court ofCassation jurisprudencein statutory texts and thedisability military pensioncode would enable toclarify the medical andsocial coverage forpersonnel on overseasoperations without, atthe same time, increasingcost to the government.The review commissionof the Military GeneralStatutes suggests to takeinto account theimputability presumptionfrom the start till the endof the mission ; it’s animprovement whichhowever does not go as faras the Court of Cassationjurisprudence.This contribution onlyaimed at evoking the legalsituation of personnelduring overseas operations; although the principleof commitment to suchoperations seems to bewell established,the consequences vis-à-vispersonnel seem moreblurred. Let’s hope thatthe proposals of the reviewcommission of the MilitaryGeneral Statutes will finda favorable echo. Maybewe could go further -allocate a specific legalstatute to overseasoperations.DOCTRINE # 04 14 SEPTEMBER 2004

doctrineIs there a Law of Warfare ?If war confronts us with a specific problem, it comes from its disproportionate, and barbarian nature. Just as afight between two men has a violent aspect without any rule, and any constraint..., when no police forcesintervene, in the same way, a declared war sets forces in motion, which consequently overstep the mark of thewrong undergone or of the incurred threat. It is a “ savage all or nothing ”. This disproportion is certain, itwounds our innate sense of reason - and we claim that war is “ absurd ” ; it wounds our will for universal good -we claim it is a “ scandal ”. But, when you think about it, disproportion is not so much the sign of madness or ofcollective injustice as much as it is the proof of a lack of any institution, of higher wisdom, able to providemeasured solutions and to be able to impose them on on the belligerents. “ War is not a rightful necessity - it isneither metaphysical nor divine -. Nevertheless, the defense of a nation against an aggression infringing on itsrights, on its dignity, and on its safety, can legitimize this statement. The law of war acquires obvious nobility,insofar as it enables to safeguard international balance and universal peace from the tantrums and oscillationsof nations. ” 1Peace is a work of justice but it is also a work of force.Therefore, we must initially deal with the concept of law within war ; then, we will deal with the fundamentalprinciples of this law.BY LIEUTENANT-COLONEL JÉRÔME CARIO, CENTER FOR FORCE EMPLOYMENT DOCTRINE (CDEF) LESSONS LEARNED DIVISION (DREX)ADC F. CHESNEAU/SIRPA TerreWhat is Law Within War ?Is there not a contradictionin the very terms when wedeal with “ law within waror the law of armedconflicts 2 ” ? Can weassociate to the term of lawa behaviour which seems tobe its denial ? 3 The paradoxis only apparent. Indeed,war, like trade, like themovement of people, -following the example ofany human activity - is anopportune chance toregulate it. “ After all, itshould not be more childishto codify the conduct ofhostilities between twoarmed groups than it is forroad traffic ”. Thus, there isno inconsistency indealing with the “ Law ofarmed conflicts ”. 4Law within war is thus aset of principles and rulesof public international lawapplicable duringconflicts and whosepurposes are :- to protect and affirmthat non-combatants,civilians in particular,and out-of-actionsoldiers are treated withhumanity (Geneva Law),- to limit, even to prohibit,some warfare methodsand means, in order toprevent undistinguishedviolence and excessivesufferings (The HagueLaw).Sources for this law lie incustoms and internationalconventions. If thesecustoms go up rather far intime5, ..., conventions thatcodified them, as what wasthen called “ war law andcustoms ”, originate at thetime of the creation of theInternational Red Cross.This is when it producedthis legal corpus commonlyreferred to as humanitarianinternational law or law ofarmed conflicts. 6Today, it is thus a set ofnumerous andsophisticated internationaltreaties, which make up themain part of law within war.For this reason, their scopemust be evaluated with thecriteria and methodologysuitable for internationalSEPTEMBER 2004 15 DOCTRINE # 04

law. Thus, before affirmingthat such a rule applies to aparticular conflict, it isadvisable to check if theNations taking part in thisconflict are bound bythe treaty which statesthe rule and, in the event ofan affirmative answer, ifthey did not make anyreservations. For example,if the 1949 GENEVAConventions were ratifiedby almost all the Nations,it is neither true for theiradditional 1977 agreements- which bind only two thirdsof them to date - nor forthe 1980 convention - whichbinds less than one thirdof them. 7“For us, French soldiers,the law of armed conflictsis a mandatory law, whichprevails over the rules ofnational law.” 8This flexible law applies tointernational wars only,namely mainly interstatewars, such as the Iraq - Iran(1980-1988), Iraq - Kuwait(1990-1991), Ivory Coast(2002-2003) or Iraq - Anglo-American coalition (2003 -...) conflicts ; nationalliberation wars, whichoppose a Nation to aforeign occupation poweror regime, such as theWestern Sahara (1975 -...)conflict ; internal conflictswith an interventioncharacterized by thecommitment of foreignarmed forces, such as theVietnamese (1958 - 1975) orAfghan (1979 - 1989/2002)conflicts.the four GenevaConventions, (article 3,common to the fourconventions), - in the 1954The Hague Convention(article 19), - as well as atreaty that includes lessthan 20 articles, the 19772 nd additional agreement.These texts state theminimal protectionstandards for the victims.Still it is necessary that aninternal armed conflictreach a certain scale forthese provisions to apply,which is not the case if therebellious party does notcontrol a part of territory ordoes not have, at least, anorganized armed force.These texts do not applya fortiori, either to situationsof internal disorders.Main Principles in LawWithin WarLaw within war relies onthe primacy of the victims’interests. In case of doubt,it means that it is necessarythat - between twobehaviors - the behaviorthat is most favorable tothe victims prevails. 9PROPORTIONALITYThis principle of priority tothe protection of the victimslies in the fact that this lawrelies less on the interstatereciprocity than on theunilateral obligationtowards the victims. 10In other words it is notbecause a warring factionviolates the “ jus in bello ”that the other party can giveup applying it ; reprisals aregenerally prohibited. 11Thus, on the one hand,there is law within war thatregulates the conduct ofhostilities by relying onthe conservation of Nations :it is the militaryrequirement 12 ; on the otherhand, there is a law ofassistance, which tends toprotect the victims : it is thehumanitarian principle. 13Apart from these generalprinciples, there areprinciples more specific tothe various phases of aconflict.Indeed the law of armedconflicts governs two typesof situations :- situations of confrontationwhere individuals areMILITARY REQUIREMENTexposed to the directeffects of hostilities ;- situations following aconfrontation whereindividuals findthemselves in the enemy’spower.Thus, the specific principlesof proportionality 14 and ofdiscrimination 15 are setdown as a requirement for amilitary commander whenplanning and conducting anoperation. They have butone goal, to avoidunnecessary evils whileenabling a militarycommander to achieve thetasked mission, which thusresults into a militaryrequirement. This militaryrequirement may producecollateral damage or effectsthat are likely to be butaccidents.When understood andapplied in this way, the lawof armed conflicts is surelynot a “weapon againstsoldiers”. “Contrary to whatsome people wish or evenimagine, the law of armedconflicts should not beconsidered as a constrainton the conduct of themission; on the contrary, itcontrols it.” 16DISCRIMINATIONIn internal conflicts, muchmore frequent nowadays,such as the Yugoslavconflict, in its early phase(1990 - 1991), the conflictin Chechnya (1994 -...) or inLiberia (1989 -...), the lawof armed conflicts involvesnothing more than a trifleshare, - a provision inColLateralEffectsAVOIDING UNNECESSARY EVILSColLateralDamageDOCTRINE # 04 16 SEPTEMBER 2004

doctrineConclusionThe implementation of law within war does not elude the weaknesses of the current international system, whose processstill largely relies on the willingness of Nations and thus unfortunately on the law of the strongest. Consequently, we canwonder why a Nation that deliberately violates international law by engaging in a war - unambiguously banished since theenforcement of the United Nations Charter, (purpose of the jus ad bellum) - would comply with the rules of the law ofarmed conflicts (purpose of the jus in bello) ?Actually, in spite of many serious violations, we cannot ignore that it also contributes to spare innumerable lives, eitherbecause the standards that it defends have been understood and accepted, or still by mutual interest, or finally out offear of international sanctions or disgrace.But for the law of armed conflicts to be complied with, the Nations must first of all commit themselves to become partiesto existing treaties and to carry out prescribed obligations.Then, for the law of armed conflicts to be known by all those that will have to enforce it and to become part of nationallegislative systems, it is necessary that Nations take a range of measures or provisions.Two kinds of national measures are particularly important :- national legislations that Nations must pass to enforce these treaties; “the higher contracting parties and parties toconflict must repress serious offences and take the necessary measures to put an end to all other infringements toconventions or to the present agreement which result from an oversight contrary to a duty to act.” 17- measures about the dissemination of Law of Armed Conflicts (DCA) and soldier training. “ The higher contracting partiescommit themselves to disseminate conventions and the present agreement in their respective countries and in particularto incorporate its study in military training syllabuses as much as possible, in peacetime as in periods of war. ” 18Thus, if force is necessary, “ it is necessarily controlled, i.e. anxious to save civilian populations and respectful of theadversary... Numerous are those that could think that law within war might be at the level of speech whereas action takesplace in the concrete realities of a quite different inspiration. It is a dangerous and criminal concept ”. 19Law within war or the principle of controlled force is thus necessarily essential to us ; for this reason, it must feed ourthinking, our training, our operational planning and our commitments.1G. de Nantes. War and deathpenalty. In the CRC in the 20 thcentury. March 1976.2 In a deliberate way, we willconsider that the concepts oflaw within war, humanitarianinternational law or law ofarmed conflicts form the samelegal corpus.3 For CLAUSEWITZ : “ One couldnot introduce a moderatingprinciple into the philosophy ofwar without making nonsense ”.4 Eric DAVID. Principles of Law ofarmed conflicts. BruylantEdition. Brussels. 1999republication.5 Jerome CARIO. Law of armedconflicts or limitations to harm,in its regulations and means.Doctorate thesis in history -humanitarian international law.Nantes University, November2001.6 In 1864, following the workissued by Henri DUNANT - Amemory of SOLFERINO, thatNations adopt the first majormultilateral convention on lawwithin war : the GENEVAConvention dated August 22,1864 for the improvement ofthe fate of wounded soldiers.7 Lieutenant-Colonel JérômeCario. Law of armed conflicts.Editions Lavauzelle/CREC.July 2002.8 Article 55 of the 1958 -Constitution : “ The treaties oragreements regularly ratifiedor approved have, as of theirpublication, a higher authoritythan that of laws, on thecondition that, for eachagreement or treaty, it isapplied by the other party. ”See : (The principle ofreciprocity).9 In war, “ it is preferable towound rather than to kill and itis preferable to take somebodyprisoner rather than towound ”. ICRC (InternationalCommittee of the Red Cross)principle of humanity.10 “ The higher contractingparties commit themselves toabide by this convention andthis agreement and to enforcethem, in all circumstances. ”Article 1 common to the fourGeneva Conventions andarticle 1/1 of the1 st agreement.11 Vienna Convention on the lawof treaties, art. 60, paragraph 5.12 Military requirement : It is theprinciple which authorizes abelligerent to take all thenecessary measures thatwould be required to completean operation and that wouldnot be prohibited by the laws ofwar.13 The humanitarian principle : Itis the protection of noncombatantsin allcircumstances.14 The principle of proportionality• It is a principle of limitationfor military operations :- It is not an unlimited right asfor selecting the means toharm the enemy ;- It is the prohibition to inflictuseless sufferings ;- It is the prohibition to causeextended, durable and seriousdamage to the naturalenvironment.• It is also a principle ofprohibition or limitation ofcertain combat means ormethods :- Perfidy ;- The prohibition toexterminate survivors ;- The prohibition or theregulation of some weapons.15 The principle of discrimination- It is the distinction madebetween combatants andcivilian people:- It is the distinction madebetween military objectivesand civilian assets;- It is a reinforced protectionfor some civilian assets;- Protected areas.16 Major General Bruno CUCHE.Symposium on Humanitarianinternational law and armedforces. May 2000. Researchcenter of Saint-Cyr Academy.Editions PIR, Saint-CyrAcademy.17 “ G P I -86; G I-49 ; G II-50 ;G III-129 ; G IV-146 ”18 “ GI -47 ; G II-48 ; G III-127 ;G IV-144 ; GPI-83/1 ; H.CP-25. ”19 General Jean-RenéBACHELET. Short speechdelivered at the SIGEM.March 2001.SEPTEMBER 2004 17 DOCTRINE # 04

The Rules of Engagementin Ten QuestionsThe notion of rules of engagement (ROE) remains for many people an object of questions. What doesthis expresion include, what is the use of these rules of engagement ? Where are they coming from ?What is their legal value ? This article has no other ambition than to provide some short elements ofanswers to these questions.BY COLONEL (QUARTER MASTER) FRANÇOIS MARTINEAU*, LEGAL AFFAIRS DIRECTORATEADC F. CHESNEAU/SIRPA TerreWhat are the Rules ofEngagementThe joint glossary forthe words and expressionsrelated to the operationnaluse of forces defines themas “ Guidances released bya competent militaryauthority and specifyingthe circumstances and thelimits in which forces will beallowed to open fire or keepfighting. ” However, anothertext often implemented bythe French armed forces,NATO 1 MC 362, definesthem in a slightly differentway : “ The ROE’s areguidances released tomilitary forces ( includingservice members ) whichdefine the circumstances,the conditions, the degreeand the manner in whichone has to respect, to beallowed, or not to use force,or to engage in behaviourwhich might be consideredas provocations. ”So, we are in the presenceof two definitions : the useof firearms in one case andthe use of force,understood in a largersense, in another. Thesedefinitions reflect theirtime. The present Frenchdefinition is taken from theAAP-6 (NATO glossary),adopted in 1973, itselfinspired by the 1967American definition, allthese definitions datingfrom the Cold War era. TheMC 362 definition as well asrecently adopted 2 others,show a larger concept : theuse of force includes theuse of weapons but alsoencompasses any measureleading to restrict individualliberties as well as actionsor measures that can beseen as aggressive orprovocative by a potentialadversary. These definitionshave in common the factthat they have beenadopted for less than fiveyears. They reflect theevolution of the missionsassigned to the military inthe framework of peacekeeping missions. Soldiersare increasingly requestedto substitute themselves topolice forces. This leadsthem, for example, to carryout identity controls, todetain individuals or arrestwar criminals. This is thereason why the Armedforces staff deemednecessary, to come closerto the recently adopteddefinitions, to givethoughts to the definitionof the ROE that will soonappear in the Joint doctrinefor the use of force inexpeditionary operations -the result of a commonwork between the Armedforces staff and the Legalaffairs Directorate. Francewill then have at itsdisposal a catalog of rulesof engagement comparablewith those of NATO andthe EU, and interoperablewith them.Where are they ComingFrom ?The notion stemmed fromthe US Navy in the midfifties 3 . Why this navalorigin ? During the ColdWar, the US Navy ships, outat sea, might findthemselves facingharassment actions byWarsaw Pact ships 4 . It wastherefore necessary to givethe commanders directionspermitting them to controlthe escalation risks duringpossible clashes withadverse fleets. The notionwas later used, in the earlysixties, by the US Air Forceelements stationed in SouthKorea and then by the USArmy.Of What Use are they ?The object of the rules ofengagement is to enablethe civilian or militaryauthority to master the useof force at the differentechelons of command ; andthis, depending on thelimitations imposed by thepolitical, military and legalrequirements. Bydetermining the conditionsfor the use of force, theypermit the commanders ofdeployed forces to managecrisis situations in peaceDOCTRINE # 04 18 SEPTEMBER 2004

law which are the law of thearmed conflicts 10 and thelaw on human rights. Thestandards to be appliedmay vary depending on thenature of the crisis and itslevel of violence. Thereforethey are specified for eachoperation. Besides, thenational law continues toapply to the militarycomposing the force. So,under the article 113-6 ofthe Criminal Code and ,moreover, for the militarypersonnel, because of thearticles 59 and 68 of theCode of Military Justice, theFrench criminal law appliesto all the French citizensoutside the territory ofthe Republic. The laws offoreign states may,regarding the use of force,differ from the French law.In the hypothesis of amultinational operation onemust ensure that theimplementation of the rulesof engagement does notcontravene the French lawwhich prevails. Thereference documents ofthe different organizations(NATO, European Union)envision the possibility thatthe states taking part in anoperation releasecomments or restrictionspermitting each state torespect its own law.What is their LegalValue ?The combination of therules of engagementbetween political, militaryand legal factors is a sourceof confusion about thevalue of these rules. Itwould be wrong to believethat the respect of the rulesof engagement of theinternational and nationallaws make themautomatically acquire theirvalue. The rules ofengagement must beconsidered as orders fromthe command or, interms of the CriminalCode, orders from the“ legitimateauthority ”. The forcein overseas operationis, in fact, employedunder the order of alegitimate authorityi.e. a competent publicauthority 11 .CCH J.J. CHATARD/SIRPA TerreConcretely, canthe rules ofengagementexonerate soldiers whoapply them from criminalresponsibility ? Article 122-4of the Criminal Codeforesees, as a cause forexoneration of criminalresponsibility,the obedience to anindistinguishable illegalorder from the legitimateauthority. 12 Insofar asthe act prescribed by therules of engagement is notobviously illegal, theexecutor will see himselfexonerated of his criminalresponsability. Theresponsibility then weightson the drafter of the rules ofengagement. Respect ofthe rules of engagement bysubordinates contributestherefore to their legalprotection.It is precisely to reinforcethe latter that the Directionof the legal affairsproposed, in the frameworkof the works of revision ofthe general status ofthe military, that be insertedin this text a dispositionestablishing the principlethat “ particular criminaldispositions pertaining tothe use of force by servicemembers outsidethe national territory areforeseen by the MilitaryCode of Justice ”. Thesespecial dispositions might,in substance, establish that“ is not criminallyresponsible the soldier who,in the respect of the rules ofthe international law and inthe framework of a militaryoperation taking placeoutside the French territory,applies coercion measuresor uses armed force when itis necessary for theperformance of themission ” 13 .* Chief of the office for the right ofarmed conflicts in the Directoratefor the legal affairs of the Defenseministry .1 On Novembre 9 th 1999, the militaryCommittee ratified the documentMC 362, “ NATO Rules of engagement“ which states the procedureto adopt rules of engagement andprovides a catalog of these rules.2 Like the UN guidance “ Rules ofengagement for the UN peacekeeping operations (April 2002)(MD/FGS/020.0001) or the concept “Use of force for EU-led Military CrisisManagement Operations” ofthe European Union(ESDP/PESD/COSDP 342 datedNovember 20 th 2002).3 The first informal use of theexpression dates in November 1954with the release of the “ InterceptEngagement Instructions forthe U.S. Navy ”.4 This explains why the French Navy,accustomed to operations andexercices in conjunction with NATONavies has been, historically,the first to be confronted with thatnotion.5 In 1982, a US Army study demonstratedthat out of 269 cases offriendly fires against ground forces,99, or 37 % resulted from fires fromAir Force planes supposed to supportthem.6 Proportionality is the requirementthat the use of force will be limitedin intensity, duration and scope, towhat is necessary to stop and repelthe attack or the threat. Except asotherwise stated, minimal forceincludes lethal force when it isnecessary. In war time, the rulesare more flexible than the rulesestablished for peace supportoperations.7 There are however exceptions.So, with a deterrent goal, Francedeclared during the Iran-Irak war,that “ the French war ships willopen fire at the forces which willrefuse to stop their attack on aneutral merchant ship whenFrench ships have received distresssignals. “8 However rules of engagement havebeen seen with guidances such as :“ looting is forbidden “, “ treat withhumanity all captured persons “, “denial of quarter is forbidden “.Mixing these permanent principleswithin the rules of engagementwith technical rules pertaining tothe operation may be confusing forthe unit members who may givethem an identical value and “ forget“ the principles of the law of thearmed conflicts that would not havebeen reminded by the rules ofengagement.9 For the procedure adopted by theEuropean Union, see LCL Joram’sarticle devoted to operation “Artemis “.10 The law of the armed conflicts rulesthe use of the military force insituations of armed international ornon international conflicts. It limitsthe means and methods of combatthat may be employed by the belligerentparties. The use of forcecannot go beyond what is authorizedby this law.11 See Article 21 of the Constitution ofthe Fifth Republic about the assignmentof the military authorities. -law n°72-662 dated July 13th 1972general status the military of -Decree n°82-138, dtd 8 Feb 1982Attributions of the Chiefs of Staff.12 Article 122-4 para 2 of theCriminalCode : “ Is not criminally responsiblethe person who performs anact ordered by the legitimateauthority except if this orders areobviously illegal. “13 Report of the Commission incharge of the revision of the generalstatus of the military, chaired byM. Denoix de Saint Marc, datedOctober 29th 2003, pp. 15-17.DOCTRINE # 04 20 SEPTEMBER 2004

doctrineThe Indispensable Cooperation Betweenthe Military Authority and the Military Policein Criminal MattersIn French law, the notion of crisis, defined as an intermediate situation between peace and war,has no legal existence. So France’s engagement outside the national territory occurs in theabsence of a specific legal framework. Crisis management is therefore kept in the French commonlaw to which must be added dispositions of international significance such as :1) the agreement about the status of the forces which establishes, at least, a privilege of juridiction,2) the rules of engagement which, schematically, constitute the framework of the military actiondefined by the political authority.That way, any member of the French forces operating or deployed in a foreign country, notably in amultinational operation, remains under the influence of these texts and of the French law. Since1999, the Armed forces tribunal in Paris is the sole competent to take cognizance of thesecriminally litigious actions or omissions under the article 59 of the Military Justice Code (CJM).The district attorney of this tribunal is assisted by criminal police officers of the Armed forces(OPJFA), professional soldiers from the Gendarmerie who serve with the military police and whohave as one of their missions to carry out criminal police duties within the armed forces. As such,they ascertain the violations of all nature and report them to the competent magistrate.But the particular situation of the overseas operations imposes the cooperation of the militaryauthority who has some prerogatives in criminal matters and of the OPJFAs who must take intoaccount the legitimacy of the action.BY LIEUTENANT-COLONEL (QUARTER MASTER) P. JABOT, LEGAL ADVISOR OF THE COMMANDER, LAND COMMANDThe Role of the MilitaryAuthority in CriminalMattersAs a general rule, themilitary authority has theability to take up theattorney’s summary. In thisframework, he has acertain competence forjudgement.The Military AuthorityInforms the AttorneyThe article 40 para 2 of theCriminal Procedure Code(CPP) specifies that “ anyconstituted authority (...)who, in the exercise of hisfunction has the knowledgeof a crime or an offence isobliged to report it withoutany notice to the attorneyand to forward to thismagistrate all theinformations pertaining toit ”. It is under this articlethat the military authorityis obliged to inform theProsecutor’s Office of allcrimes or offences in hisknowledge 1 . Therefore themilitary authority informsthe attorney either directlyor through an OPJFA. Thatinformation is subject to noregulation about the form.This duty to inform mustnot be confused with theindictment or the opinionof the minister and of theentitled authorities asestablished by the article698-1 of the CCP whichenable the militaryauthorities to directlyrequest the intervention ofthe Gendarmerie for aninvestigation, for examplein the framework of arobbery committed in amilitary facility.Therefore the militaryauthority is obliged toinform the attorney of thecrimes, notably thosewhich might have occurredduring an engagement bythe Force. Consequently,the presence of OPJFAs inthis type of action is notmandatory but may favor,through the drafting ofhearing and observationreports, the protection ofthe interests of the militarywho would be undulysummoned by a victim. Themilitary authority must alsoevaluate the act.SEPTEMBER 2004 21 DOCTRINE # 04

SIRPA GendarmerieThe Reviewing Authorityof the MilitaryCommanderOn October 27 th 1999 2 ,the Council of Stateconsidered thatthe administrative authorityis only responsible to reportto the attorney “concerningthe facts thatit comes to know inthe course of itsattributions, if these factsseem plausible and if itestimates that theyconstitute a sufficient basisto be in breach of the law,the implementation ofwhich it has for mission toensure. ” The militaryauthority is therefore notobliged to immediately,automatically, and withoutjudgement forward theinformation concerning anadverse incident. It mustexert its competence byinvestigating the case.The facts must besufficiently established, belinked to its competencearea and present apunishable or criminalnature. So it has somepower of evaluation and candecide that a violent actconducted in accordancewith the received ordersdoes not present apunishable or criminalnature. Of course, if needbe, the legal authoritywhich would have hadknowledge of the factsthrough another channel,can always estimatethat there is, in thecircumstance, a violationof the obligation to inform.What would then bethe sanction ? There are afew specific dispositionswhich constitute offencessuch as, for example, hidingor modifying any evidenceof a crime or of an offence 3 ,the threat or intimidationto deny the filing of acomplaint 4 , or yet witnessbribing 5 . Nevertheless thesecases are few in numbersand strictly defined.It appears therefore that themilitary authority is totallyable to judge the existenceor not of a characterizedoffence. Evidently, it is notabout hiding a criminaloffence, but it can have nofear to err on the wrongside as soon as it estimatesthat the action was notunlawful.Taking into Accountof the Legitimacy ofthe Action by the OPJFAsThe intervention of theOPJFAs, legitimateaccording to the texts, mustallow to verify the legitimacyof the military action.An Intervention Justified bythe TextsMilitary Police personnel, aswell as the officers, NCOsand gendarmes under theircommand, practice militarycriminal police duties underthe dispositions of articles81 to 88 of the CJM andnotably article 84 para 4 ofthe CJM which specifies thatthe OPJFAs “ are bound ,towards the attorney, bythe obligations establishedby article 19 of the CPP ”which itself stresses that“ they are obliged to informthe attorney without anynotice about the crimes,offences and infringementsthey know about ”.Therefore, the applicationof this article imposesupon them to inform aboutany characterizedinfringement withoutnotice. If they are not partyto the military action, theywill be able to collect theinformations likely to helpthem to evaluate the actthanks to the cooperationwith the military authority.In this context, the kind ofrelations maintained withthe command will, ofcourse, be determining.If an investigation isdecided, the relationsbetween the DistrictAttorney and the OPJFA willDOCTRINE # 04 22 SEPTEMBER 2004

e direct. Which will thenbe the elements ofevaluation ?- Is the act covered by selfdefence6 ?- Has the act beenperpetrated because ofnecessity in order tosafeguard a seriouslythreatened person orproperty 7 which includesnotably the persons orproperties having a specialstatus quoted in the rulesof engagement ?- Is there a cause forirresponsibility, the acthaving been “ ordered orauthorized by legal orregular dispositions ” or“commanded by thelegitimate authority,except if this act isobviously illegal 8 ”, inother words, have ordersbeen given ?The legitimate action mustfind its justification in theanswer given to thesequestions.The Legitimate ActionCovered by Lawcommanded and authorizedby the law or the regulation.So, the French law offers,depending on thecircumstances, means toaddress a legitimate action.Other rules of the law canalso be legitimatelyinvoked. The local criminallaw, if it exists, is certainlyan example that must betaken into account inoperations (searching orfrisking ) which are, inprinciple, conducted inaccordance with guidancefrom the Force commander.In this type of situation, aOPJFA, who has anindisputable know-how, cannevertheless find himselftaken aback with regards tothe details, and of whichrule to apply.Similarly, in the frameworkof a peace keepingoperation, relatively intensecombat phases may occur,imposing the respect ofthe rules and principles ofthe humanitarian law.The rules of theinternational law andthe law of the armedconflicts should thereforebe applied depending onthe events.Finally, the rules ofengagement will be invokedevery time orders have beengiven for the execution of alegitimate action ; thoughnot constituting a legalstandard, they are derivedfrom the internationalmandate given to the Forceand are validated by theFrench political power. Theydetermine the conditions ofexecution of the missionand, even if they are notreleased, they must be ableto “cover ” the militaryactions conducted in theframework of the mandate.The cooperation ofthe OPJFA and of themilitary authority or of itslegal advisor is thereforenecessary to establish thelegitimacy of the act. It isindeed commonlyrecognized that in the law,legitimacy is oftensynonymous of legality.Besides, it must be stresseddoctrinethat until now no member ofa French force in operationhas been the object of acriminal sentence followingthe execution of a militaryaction. The centralizationof the affairs by the TAPsince 1999 shouldperpetuate this situationinsofar as the magistratesof this tribunal have todaya good knowledge ofthe difficulties whichthe military are confrontedwith when in overseasoperations.1 Instruction n°21420/DEF/SGA/DAJ/APM/EO dated October 23 th 2001.2 The Solana Case.3 Article 434-4 of the Criminal Code.4 Article 434-5 of the Criminal Code.5 Article 434-15 of the Criminal Code.6 Article 122-5 and 122-6 ofthe Criminal Code.7 Article 122-7 of the CriminalCode.8 Article 122-7 of the Criminal Code.9 “ The person who justifies to havebelieved he could legally performan action, and that his act againstlaw was unavoidable, is not legallyheld responsible. ” Article 122-3 ofthe Criminal Code.Let us immediately discardthe action which might beconsidered as illegal ; it isthe case, for example, whenan operation would bebeyond the framework ofthe mandate of the Force.Here, the indicted soldiercould try to justify his act byweighing his unavoidableerror against the law 9 .In the case of a legitimateaction which unwillinglycaused inappropriatebehaviors, (for example :injury because of rashness),a precedent by the SupremeCourt of Appeal datedJanuary 5 th 2 000recognized a clause ofcriminal irresponsibility tothe faults unvoluntarilycommitted during theexecution of an actConclusionThe OPJFA on the theater has therefore no reason to be systematically involved inthe military actions conducted by the forces in the execution of their mission ;the military authority must play its role in criminal matters.But there is no reason either to try to systematically keep the OPJFA aside.The establishment of a confident relationship between the military and legalauthorities is required ; there should be no suspicion of hidden violations whichthe legal authority is responsible for investigating.For that, it certainly belongs to the legal advisor of the commander on the theater,in liaison with the military police commander to dissipate all the misunderstandingsand to see to it that the written reports be marked with some caution not to stir upinextricable disputes on the principles when no serious incident occured.SEPTEMBER 2004 23 DOCTRINE # 04

Overseas Operationsof the Bundeswehrin the Light of InternationalLaw and Constitutional LawSoldiers committed in overseas operations want to know the justification for amilitary intervention in which they take part. They ask why they must part fromtheir families during a protracted period, even be put at risk of dying, beingwounded, displaced or tortured. Thus they claim a credible legitimating of a militarymission together with a legal cover for overseas operations. A lack of a legitimatestatus would result into a loss of motivation. Thus it is in the interest of theemployer-state to avoid it.BY BARON OSKAR MATTHIAS VON LEPEL, CHIEF OF THE “INTERNATIONAL LAW, CONSTITUTIONAL LAW,MILITARY LAW AND MILITARY DISCIPLINE” DEPARTMENT, MORAL AND CIVIC TRAINING CENTER OF THE BUNDESWEHRIn the past, a German soldierconsidered himself first as a militarycombatant who had to show hisabilities within the armed forces toenable the State to assert itself. Thelegitimate aspect of his mission wasobvious. Today, he has to considerhimself as an instrument of thecurrent policy. In a new securitycontext, he contributes inimplementing political decisionsabroad. It is difficult for him tounderstand the meaning of hismission if he does not receive anyexplanation. Consequently, he mustbe informed of the political goalssought after by the militaryintervention in which he takes part.Moreover, he must know the legallegitimate characteristic that justifiesthe pursuit of the objectives througha military commitment. Thislegitimating gives him the certainty toact on solid legal bases, in particularwhen he is not completely convincedby the official political arguments.This legitimating procedure relies onthe “citizen in uniform” principle. Weask our soldiers to obey orders whilekeeping a critical mind. However, tohave a critical mind, soldiers need toknow the main reasons for theircommitment as well as the principlesof international law and constitutionallaw underlying their mission. Formilitary commanders who have toanswer questions from theirsubordinates, this requirement is anenormous challenge.In addition, the commanders ofsoldiers committed in operationsmust face other questions with legalimplications. Indeed, it is necessaryto explain to soldiers in whichconditions and how they have theright to resort to force. The use offorce within the framework of anoperation, including overseasoperations, permit one to impose apolitical mission with military means.It is absolutely necessary to avoidthat a counter-productive use of forceby some soldiers or a militarycommander when they carry out theirmissions jeopardizes the success ofthe operation.Consequently, only duly authorizedcoercive measures can be applied.Contrary to traditional warfare, notresorting to force is the rule andresorting to force is exceptional.Applicable law in operation is thusorganized around the questionsarising in this context.DOCTRINE # 04 24 SEPTEMBER 2004

foreign studiesCCH J.J. CHATARD/SIRPA TerreBoth aspects, the “right to carry outoperations” on the one hand and“applicable law in operation” on theother hand, constitute the primaryelements of any legal training withinthe framework of operationalplanning.Legal Bases for MilitaryOperationsThe Importance of LegitimatingOverseas Operations withInternational LawThe framework set up by internationallaw for committing armed forcesoverseas is defined throughproscription standards. The mostimportant of which is the universal banto resort to force in internationalrelations. States are compelled tosettle their disagreements throughpeaceful means. To meet thisrequirement of the United NationsCharter, Member States havetransferred their prerogative to resortto force to the system of collectivesecurity of the United Nations. Theyhave entrusted the Security Councilwith the safeguard of internationalsecurity. Only the Council is authorizedto inflict sanctions, should peace bethreatened or broken or should anaggression occur. Coercive measuresthat the Council imposes inaccordance with chapter VII ofthe United Nations Charter are notregarded as war, but as internationalpolice operations carried out withmilitary assets.The task of the Security Council whichconsists in authorizing independentStates to resort to force, is carried outthrough the adoption of resolutions bywhich Member States are entrustedwith a military intervention into foreignStates. Overseas operations of theBundeswehr currently in progress relyalso on such resolutions. Within theframework of international law theylegitimate the use of force byindependent States. By principle,Germany takes part only inmultinational military interventionsjustified by a mandate of the UnitedNations. Exceptions, such as those wefaced during the air war in Kosovo,require a specific legitimating byinternational law.Considering the problems moreclosely, we realize that some elementsare still missing for a comprehensiveexplanation for the Bundeswehroperations to be entirely covered byinternational law. In fact, theoperations of the Bundeswehr are alsobased on conventional internationallaw. As an example, let us considerthe SFOR commitment in Bosnia-Herzegovina.The SFOR - and previously the IFOR -mission results first of all from theprovisions of the Dayton peaceagreements. They describe theobligations of former civil warbelligerents and the mission for thepeace supporting force whoseimplementation was entrusted toNATO. The Nations represented withinthe Security Council which signed thepeace agreements confirmed theimplementation of the treaty’sprovisions, negotiated with theconcerned belligerents and the BalkanStates ; it followed that any noncompliancewith these agreementswould result into coercive measures inaccordance with chapter VII of theUnited Nations Charter. To this end,resolution 1088 dated 12/12/1995 wasadopted. As far as its legitimatestanding regarding international law,the commitment of the Bundeswehrwithin the SFOR framework relies thusSEPTEMBER 2004 25 DOCTRINE # 04

on two elements : commoninternational law and conventionalinternational law.As the Bundeswehr takes part in aNATO multinational military operation,it is sometimes suggested that theSFOR commitment should also berelated to a NATO mandate under theterms of conventional internationallaw. This is not correct. The mandate ofthe Security Council obtained for theSFOR commitment by the States whichsigned the Dayton peace agreementswas not addressed to NATO, but tothe Member States of the UnitedNations. Thanks to their troops, theyhad to achieve the implementation ofthe Dayton peace agreements. Theywere tasked to take suitable measuresto carry out the tasks arising fromthe peace agreements with theassistance and within the frameworkof the organization mentioned inappendix 1-A.If the Security Council consideredNATO - expressly mentioned inthe Dayton agreements - when itdrafted its resolution, it dealt howeverat first with some nations whichcombined their forces, capacities andresources on the account of theDayton agreements and which werealso NATO members. They decided tocarry out the U.N. mandate togetherand to OPCON their available troopsto a NATO command. However thisprocedure did not transform thedecisions made by the NATO Councilinto a NATO mandate. Indeed, it wasa common decision made byindependent States in compliance withthe rules and procedures providedfor in the NATO treaty. Thus themilitary operations of NATO forces donot rely on a NATO Council decision asa legal base, but on agreementssettled within Alliance qualifiedorganizations binding NATO-membersovereign States under the terms ofinternational law.It was requested from the States notbelonging to NATO to also take part inthe NATO operation. To this end,NATO Member States authorizedthe NATO Council to conclude relevantagreements with the Nations thatdid not belong to the Alliance andwere ready to commit themselves tothe NATO operation.The Legitimating of OverseasOperations of the Bundeswehrby Constitutional LawContrary to other nations, whereasthe military operations of allthe Nations supplying troops for peacesupport missions rely on identicalprinciples of international law,Germany has some specificcharacteristics as regards the coverageof operations by constitutional law.At the end of the East-West blocksconfrontation and after Germany’sreunification, the federal governmentof that time took a cautious turntowards a policy of participation inmultinational military operations. Thispolicy caused a strong dispute withinGerman public opinion. It particularlyconcerned the commitment in Somaliain the early 90s. Parliamentaryopposition of that time regardedmilitary operations out of theframework of national and collectivedefense pertaining to the Alliance asanti-constitutional. It referred tothe text of paragraph 2 of article 87aof the fundamental Law : Apart fromdefense, armed forces should becommitted only insofar as the presentfundamental Law authorizes itexpressly. As the very authorizationrequired by this constitution articleis not included in the fundamentalLaw, overseas operations ofthe Bundeswehr - according to whatwas said at the time - would not havecomplied with the fundamental Law.A political controversy followed,arousing a keen interest, and wascarried out with legal arguments. Thisintense public debate was concludedby a decision of the federalconstitutional Court dated 07/12/1994.It objected to the reservations aspresented. It justified its decision byreferring to paragraph 2 of article 24 ofthe fundamental Law, which authorizesGermany to adhere to a system ofcollective mutual security to safeguardpeace. According to the interpretationproposed by the Court, thisconstitutional provision alsolegitimates peace support operationswithin the framework of the UnitedNations.With this decision, the federalconstitutional Court made anotherdetermining decision, whichappreciably influenced politicalpractices : Any armed operationrequires the preliminary parliamentaryauthorization of the Bundestag -whatever it is : a pure peace supportmission or a mandate of the UnitedNations allowing coercive measures incompliance with chapter VII of the U.N.Charter. This interpretation of thefederal constitutional Court does notcome directly from the wording of thefundamental Law. It comes from theconstitutional tradition which attachesa great importance to Parliament - atradition that could be observed since1918, only excluding the state practiceof the IIIrd Reich.However, the parliamentaryprerogative of approval does notconfer any right to the Bundestag totake initiatives. This means that theBundestag does not have the right tocompel the federal government tolaunch an overseas operation. It canonly grant or refuse its assent to anyoverseas operation requested by thefederal government.Applicable law in operationRights and obligations for troops incountries of deployment result fromthe mission of the forces committedoverseas, defined under the terms ofinternational law and constitutionallaw. Rules of engagement, stipulatedat international level and called “ Rulesof Engagement ” (ROEs), are thecommand and control tool thatenables political authorities to have aninfluence on the armed forces toachieve the political goals. These areOPORDs (Operation Orders) andintervention orders thanks to whichpolitical intentions can beimplemented in compliance with thelegal provisions in force. ROEs areused as a legal basis for ordersgoverning troop operations, should weDOCTRINE # 04 26 SEPTEMBER 2004

foreign studiesresort to force with or without the useof firearms. As ROEs enable to controltroops committed overseas withpolitical tools, they underlinethe primacy of politics.Nothing that is prohibited by nationalor international law can be authorizedby ROEs. The humanitarianinternational law must also becomplied with within the framework ofpeace support operations. ROEsauthors must take this into account. Onthe other hand, it is necessary toauthorize measures that imply the useof force and that are guaranteed byinternational law such as a soldier’sindividual self-defense.Each commitment is the purpose ofspecific ROEs, even if there arestandard ROEs within NATO. It isnecessary because the contents of theUnited Nations mandates are notidentical either. SFOR troops do nothave necessarily the same rights asKFOR ones. ROEs include a list ofdecisions authorizing to resort to forcewithin the framework of the optionsgranted by the very mandate,according to the provisions ofinternational and constitutional laws.Thus a military commander who ordersa measure implying the use of forceshould not only check if it is suitable,but he must also check its conformitywith ROEs.ROEs are negotiated within NATOorganizations. During negotiations,nations can voice reserves that will betaken into account. As an example : thenon-utilization of irritating productssuch as teargas or pepper spray whenfacing gatherings of people prone toviolence, the non-utilization oflandmines or similar reserves such asformulated in the past by the Germanpart.ROEs - in their capacity of agreed-uponorders at an international level - do nothave an immediate effect as such.According to German law, orders sentto German soldiers can come but froma German commander. Consequently,ROEs are formally to be enforced by theGerman SOD (Secretary of Defense).Beforehand, ROEs are not compelling.First of all, ROEs are intended tomilitary commanders. A condensedversion of ROEs is given to soldiers inthe shape of a pocket card. This pocketcard should enable each soldier tocontrol the application of theprovisions concerning the useof weapons.ConclusionThe German soldier must beinformed of the goal of his overseascommitment. He does not need toknow each legal detail of itsmission. However, he must beaware of the essential legalprovisions in order to haveconfidence in the legitimacy ofthe operations he is about to carryout. Only when he has becomeconfident, he will realize that hewill also have to comply withthe limits which are imposed to himby law.CCH J.J. CHATARD/SIRPA TerreSEPTEMBER 2004 27 DOCTRINE # 04

foreign studiesThe Public Security Gap in ModernPeacekeeping Missionsand its Implicationsfor Military-Police InterfacesAlthough recent conflicts such as those in Afghanistan and Iraq indicate that highintensity warfare will remain a potential role for modern armies for the foreseeablefuture, peacekeeping or peace enforcement missions appear likely to remain the mostcommon type of deployment. However, even in Iraq it has become clear that winningthe high intensity combat phase of an operation is not enough. The real challenge isaddressing the stabilization phase and “ winning ” the subsequent peace. There is agrowing realisation within the International Community (IC) that the sort ofpeacekeeping missions we find ourselves contributing towards -whetherpeacekeeping, peace enforcement or post-conflict stabilization- require amultifunctional approach within which the military, police or any other contributionis but one part. This axiom implies the need to achieve a convergence of variousfunctional capabilities - political, economic development, humanitarian, military andlaw and order towards a desired end-state.BY THE LIEUTENANT-COLONEL (GB) ROLLINS, BRITISH LIAISON OFFICER, CENTER FOR FORCE EMPLOYMENT DOCTRINE (CDEF)There is nothing original here.The issue is at the core of the UN’sBrahimi Report, is recognisedimplicitly in NATO’s Strategic Conceptand has been confirmed in the fivemajor Lessons Learned that havecome out of the NATO experience inthe Balkans, namely the need to :• Assign responsibilities early andclearly.• Ensure tight linkage betweenmission, mandate and capabilities.• Harmonise civil and militaryplanning and co-ordinate civil andmilitary action.• Close the “ enforcement gap ”between civil police advisors andmilitary forces.• Focus on “ end-state ” rather than“ end-date ”.However, even in making theseobservations, there may be misplacedassumptions about the IC’s ability todraw up mandates and generatecapabilities that, given adequateco-operation, planning and coordination,will meet needs onthe ground. In particular, can the ICcover all requirements from asufficiently early stage in a crisis ?This conundrum applies particularlyto the area of public security andthe interface between militaryand police forces.THE REQUIREMENTThe very fabric of any society isunderpinned by an effective systemof law and order. This requires, firstly,addressing the whole spectrum of lawand order at the same time. For aregime of public security to work,there must be :• A more general level of securitywithin which a public securityregime can be applied.DOCTRINE # 04 28 SEPTEMBER 2004

foreign studies• A legal system that is applicable tothe society in question.• The ability to investigate, arrest,prosecute and sanction criminals.This must be based upon arecognised legal process andindependent police forces andjudiciary who work to acceptednorms and who are perceived todo so.More than this, however, the aboveneeds to be put in place fromthe early stages of a crisis before anunmanageable public securityvacuum arises, one in whichthe wrong elements might flourishand undermine progress towards astable society. But do such standingcapabilities exist and, if not, how canthe situation be addressed until theyare in place ?There is considerable empiricalevidence that there is likely tocontinue to be a policing capabilitygap in the early stages of an ICresponse to a complex politicalemergency. This is in spite ofinitiatives by the OSCE, EU and UNto address such issues as the settingup of standby capabilities, improvingmobilization procedures and legalframeworks. The gap must beaddressed as what happens in thisarea in the early days is one ofseveral key issues critical tothe longer-term stability of the area.There is also, evidence, however, thatthe use of military forces can,potentially, contribute towards awider solution. Within the Balkansand in East Timor, for example, forceshave done much to supportthe policing function and upholdpublic security.IMPLICATIONS FOR MILITARY FORCESThe issue, however, goes beyondpremeditated consideration of usingmilitary forces in such a way. The factis that military forces continue to bedrawn into a direct public securityrole, often without proper mandatesor appropriate rules of engagement.This happens because therequirement has not been properlyaddressed by the IC beforehand andthere is no other way of filling animmediate vacuum. This leavesmilitary forces facing questions as towhere responsibilities for a moregeneral level of security end andthose for public security/law andorder begin. What if a public securityregime is not in place and unlikely tobe for some time ? How far does thatmilitary force go in protecting civilsociety from crime ? What is itsmandate to do so ? If it has one, whatis the legal basis ? Are the soldiersconcerned trained and equipped forsuch a role ? There have been manyexamples - the early days in Kosovois one- in which military forces havefound themselves in such a position,effectively acting as a proxy policeforce without the proper mandate.It is important at this stage to drawthe distinct, though often subtle,difference between being ultimatelyresponsible for the maintenance oflaw and order and playing asupporting role. Military forcesshould, ideally, not be ultimatelyresponsible for law and orderregimes. However there are a widerange of activities they can conductin support of small, under-resourcedpolice forces and legal authorities.Such activities include :• The sharing of intelligence - as faras security considerations allow.• Security/monitoring of borders todeter, for example weaponsmuggling and trafficking of people.• Direct support to policing action -for example provision of additionalsecurity at the scene of an arrest,focused patrol programmes, searchoperations or riot control.CCH J.J. CHATARD/SIRPA Terre• The provision of morespecific capabilities tosupport law and orderauthorities more directly,perhaps the best NATOexample being MultinationalSpecialisedUnits (MSUs), acapability deployedunder military auspicesbut comprisingresources based uponthe “ third force ”capabilities(Gendarmeries/Caribinieri/Guarda Civil) thatexist within somecontributing nations.There is potentially muchmore that can be done inproviding such support toSEPTEMBER 2004 29 DOCTRINE # 04

a police or equivalent authority leadwithout taking over the policing/legalfunction itself. However the extent towhich this is possible will bedependent upon factors that include :• Mandates.• Rules of Engagement andassociated legal considerations.• Training levels.• Equipment and force structure.There is another set of reasons thatcan limit the use of military forces insuch a role, namely domestic politicalsensitivity within donor countriesperhaps governed by the domesticconstitutional position of an army.This might point to the selective useof forces appropriate to such a role.If military forces are to be used insupport of a police or legal authority -one that may be very small in physicalterms on first deployment- a numberof other prerequisites need to be met.These include :• Identifying the gap to be filled.• Understanding fully the limitationsof using the military in a publicsecurity role.• Joint planning prior to deploymentthat anticipates changes in missionrequirements over time and whichinclude plans for transition ofresponsibilities.• Military force generation anddesign.• Training covering a wide range ofactivities.• The drawing up of realisticmandates.• Structures for co-operation onthe ground, such as joint operationscentres.None of this is easy to address andless easy to follow through. Even inthe Balkans today where the publicsecurity position is much improvedand both international police forces aswell as ones established locally areworking well, a stable public securityregime is not yet embedded.In particular, organised crime on ahuge scale continues to pose a majorchallenge to the creation of effectivelaw and order. To combat it requires alevel of capability within the mandatedorganisations and the local forces theyare supporting and a level of interorganisational/inter-governmentalco-operation that is proving difficult torealise.CONCLUSIONThere continue to be potential gaps in the IC’s ability to establish effective public security regimes in peacekeepingoperations. This stems from the absence of readily deployable capabilities that can be tailored to a given situation.The problem is further enhanced by the need to address the spectrum of public security issues in an holistic,integrated manner. This can only be done under the lead of the proper, mandated civil authority. Often, in the absenceof such an approach, military forces have found themselves drawn into public security roles without proper mandateand/or preparation. Both these problems can be addressed together by recognising that military forces can contributemuch towards effective and lasting public security without going beyond playing a supporting role. Nonetheless, forsuch an approach to work there is a considerable range of issues that needs to be first addressed. These issuesinclude examinations of :• Potential requirements in the above field and the IC’s ability to meet them from civil/police sources.• The extent of potential military support.• The follow-on implications for military forces of involvement in such a role.• The potential command and control arrangements for integrating military capabilities with civil led law and orderregimes.• The legal and policy implications of the above.DOCTRINE # 04 30 SEPTEMBER 2004

foreign studiesforeign studiesThe Laws of Land Warfareand Non-Conventional WarThe Laws of Land Warfare (LLW) represent a relatively comprehensive set of rulesgoverning conventional warfare between nation states with regularly constitutedand identifiable military establishments. These rules are the result of a long historicaltradition and effectively regulate the conduct of war when war follows the standardmodel of violent confrontation between established states in the form of battles andcampaigns contested by conventional armies and navies. The LLW are much lesseffective, however, in governing non-conventional conflicts. In this short article I willattempt to describe the legal complexity of non-conventional warfare. This shouldallow us to understand the reasons for the failure of the LLW to effectively govern nonconventionalwarfare and identify the work to be done if this failure is to be corrected.BY THE LIEUTENANT-COLONEL VAN MARTIN, AMERICAN LIAISON OFFICER, CENTER FOR FORCE EMPLOYMENT DOCTRINE (CDEF)The views expressed in this report are thoseof the author and do not necessarily reflectthe official policy or position of theDepartment of the Army, the Departmentof Defense, or the U.S. Government.The very fact that we label certainconflicts non-conventional hints atthe legal and moral problems theseconflicts will produce. Nonconventionalconflicts are legally (aswell as physically) messy and for goodreason. They are at the intersection ofthe LLW, other aspects of internationallaw and civil law. Unlike conventionalconflicts where legal distinctions andcategories are relatively clear, in a nonconventionalwar there is frequentlylittle agreement on the legal and moralstatus of the different combatants andtheir actions. Of course, even inthe most conventional armed conflictwe invariably are confronted withcompeting and mutually contradictorylegal and moral claims concerningissues of both jus in bello, the justCCH J.J. CHATARD/SIRPA Terreconduct of war, and jus ad bellum,the justice of engaging in a particularwar. In non-conventional warfare,however, we are frequently confrontedwith moral and legal claims whichseem to ignore or even reject outrightthese traditional categories that formthe foundation of the LLW. The legalproblems presented by nonconventionalwars are particularlyurgent today because we findourselves increasingly confronted byasymmetrical wars which almostinvariably start as or evolve into non-SEPTEMBER 2004 31 DOCTRINE # 04

conventional conflicts. To avoidconfusion and get at the core of thelegal problems posed by nonconventionalwarfare, we must clearlydefine what we are talking about.At one end of the spectrum of what issometimes considered nonconventionalwarfare are tactics andoperations which we can assimilateto conventional war. In these cases,both combatants fight usingconventionally equipped andorganized forces, but one or both ofthem adopt non-conventional tactics,usually using specialized units. Nonconventionalin this sense entailsavoiding pitched battle with youropponent’s main combat formationswhile conducting raids, ambushesand other combat operations againstlogistic, command and control andother “ soft targets ”. In these cases,the LLW are effective in governingthe conduct of the combatants.Although we sometimes talk aboutsuch examples as cases of nonconventionalwarfare, they are in factquite conventional and we must treatthem as such. British and American“ Chindit ” operations againstthe Japanese in Burma during WorldWar II are a classic example of thissort of warfare.At the other end of the spectrum of“non-conventional ” warfare is whatI would identify as true nonconventionaloperations. But what are“ true ” non-conventional operations ?These are operations where acombatant force seeks an advantageby blending in with the civilianpopulation to escape engagement onunfavorable terms. These nonconventionaloperations frequentlyinclude the deliberate targeting ofcivilians. Further, the belligerententities who conduct “ true ” nonconventionaloperations are routinelygroups who have no clear sanctionfrom a state and no clear legalexistence within the framework ofinternational law. They are notnecessarily identifiable as militaryorganizations either, although in mostcases these groups will have someof the features of a militaryorganization. In “ true ” nonconventionalwarfare, therefore, wemust keep in mind these twoimportant features. The first isthe instrumentilisation of the civilianpopulation as a military asset by oneor both of the belligerents.The second is the confusion overthe legal status of the group orgroups conducting non-conventionalwarfare. A group such as Hamas is aprime example of this sort of extrastateentity waging non-conventionalwarfare. Hamas depends onthe Palestinian civilian population asa protective cover and uses the Israelicivilian population as its prime target.Of course, in most of the conflictswhich we qualify as non-conventional,there is a confusing mixture ofconventional and non-conventionalactors, tactics and operations usedby one or more of the belligerents.The U.S. war in Vietnam is a classicexample of a conflict with this typeof confusing mixture of actors andtactics.At this point we can begin to identifythe often intractable legal issuesassociated with non-conventionalwarfare. Perhaps the most criticallegal problem in these types ofconflicts is posed by the fact that oneor more of the belligerents rejectthe distinction between jus in belloand jus ad bellum. Belligerents inconventional wars either believe orat least seek to give the appearancethat their conduct generally conformsto the LLW. Obviously in any conflictthere is tremendous disagreementbetween belligerents concerningthe legality of their opponentsactions. This disagreement isparticularly acute on questions of jusad bellum. Yet despite fundamentaldisagreement on the question of jusad bellum, belligerents can and oftendo agree on the tenets of jus in bello,the just conduct of war.This distinction is fundamental ifthe LLW are to have any meaningfulrole to play at all in regulatingthe conduct of war. A nonconventionalcombatant group willalmost systematically reject thisdistinction and will instead justifytheir violations of jus in belloconstraints by appealing tothe compelling justice of their causeand their relative weakness.The formula very simply put is“ We are weak but our cause isprofoundly just. Because of ourweakness we cannot possibly win ifwe respect the LLW. But giventhe justice of our cause, we must winand can therefore prosecute thestruggle without regard to the LLW. ”This extraordinary challenge tothe LLW has gained wide currency andacceptance during the later half ofthe 20 th century. This formula andovert or tacit rejection of the LLW wasthe standard approach of Marxistinspired wars of so-called “ nationalliberation ”. These wars invariably hada very large non-conventionalcomponent with the resultingdegradation in the respect of the LLW.The justificatory discourse of the nonconventionalMarxist inspiredbelligerents in these wars becameso pervasive that we now tend toselectively accept this type ofreasoning as valid. The Israeli conflictwith the Palestinians is a primeexample of the power of justifying acomplete disregard for the jus in belloportion of the LLW based onthe supposed overwhelmingly justnature of a belligerent’s cause andthe belligerent’s weakness.Palestinian “combatant ” groups suchas Hamas violate the most basictenets of the LLW, yet are almostnever condemned as criminals exceptby their opponents the Israelis.The Israelis, on the other hand,have extensive rules of engagement(ROE) designed to afford at leastminimal respect for the LLW. Whetherthe Israelis do effectively respectthe LLW is an open question ofcourse. What is surprising is thatthe Israelis are frequently condemnedas war criminals or even ascommitting crimes against humanitywhile the Palestinians get a free ride.It is perplexing that there is almostno inclination to hold their nonconventionalopponents to the samestandards of legality.The second perhaps insolublechallenge non-conventional warfareposes for the LLW is the confusionover the legal status of nonconventionalcombatants.The question is : are they combatantsDOCTRINE # 04 32 SEPTEMBER 2004

foreign studiesCCH J.J. CHATARD/SIRPA Terreas defined by the LLW or simplycriminals ? The complexity of modernnon-conventional conflicts make thissimple question perhapsunanswerable. Part of the problem indetermining the status of nonconventionalcombatants comes frominterpreting the LLW criteria foridentifying a combatant. Were non-Afghanis fighting beside the Talibanlegitimate combatants under the LLW,or “ illegal combatants ” as claimed bythe U.S. government ? Resolvingthe controversy surrounding these“combatants ” status is dependent onachieving a consensus on the legalnature of their activities underthe LLW and other international law.Another facet of this problem comesfrom establishing the legal statusunder international law ofthe organizations that nonconventionalcombatants aremembers of. War in the 21 st centuryseems destined to primarily opposestates against non-state transnationalorganizations. What is Al Queda’sstatus under international law and theLLW ? Are members of Basque orCorsican separatists groups protectedunder the LLW ? What about the IRA ?Many non-conventional conflicts takethe form of civil war which furtherexacerbates the legal confusionsurrounding the conflict. Will theconflict be governed by internalcriminal law or the LLW ? For example,should French torturers during theAlgerian war have been punishedunder French law or international lawor both ? Did they even violate theLLW since Algeria was for the Frenchan internal “ police action ” ? Perhapsthe last problem for assigning or nothe status of combatant is the fact, aswe saw in the paragraph above, thatmany non-conventional combatantorganizations reject the LLW. Clearlythis is the case of terrorist groupssuch as Hamas and Al Queda. If theyreject the LLW completely, to whatextent do they deserve protectionunder the LLW ?Non-conventional warfare posesthe greatest challenge to the legaledifice represented by the LLW. Thiswas of course true in the past but iseven more so today as we enter aperiod of our history where nonconventionalwars and actors seem todominate warfare. This challengepoints out the stark inadequacy ofinternational law and the LLW to insome way “civilize ” modern war.Of course this weakness is nothingnew. During the Cold War the differentnuclear powers’ strategies of massivenuclear retaliation completelydisregarded any consideration ofthe LLW. That glaring failure ofthe LLW was never resolved and isprobably un-resolvable. We haveperhaps a greater chance of resolvingthe legal and moral problems posedby non-conventional warfare. Solvingthese problems, however, will entailsignificant new work on definingthe LLW. For the time being, that workhas not even begun.SEPTEMBER 2004 33 DOCTRINE # 04

foreign studiesThe Legal Protectionof deployed Spanish SoldiersThroughout their history, the Spanish armed forces have served on theaters ofoperations under the protection of their flag. However, since 1992, the military forceshave taken part in many international missions and from a legal point of view theyhave taken a new step - extraneous to tradition, but rich in debates.Since Spain’s integration into NATO in 1982, the “ Status of Forces Agreement ” (SOFA)has represented the reference framework that lays down the rules for the status offorces out of the home territory. Nevertheless, the operational span is broader and itis sometimes necessary to consider other structures (UN, EU...) for overseas militaryoperations.Debates on the legal protection of committed soldiers primarily concern the missionscarried out by Spanish forces within the framework of the United Nations or NATO.Before looking further into the very specificity of these fields, it is necessary tounderline some aspects of the organization of Spanish justice.BY LIEUTENANT-COLONEL JOSÉ IZQUIERDO-NAVARETTE, SPANISH LIAISON OFFICER, CENTER FOR FORCE EMPLOYMENT DOCTRINE (CDEF)Military Justice in SpainThe military legal status is adapted tothe constitutional provisions andguarantees and it is used within theframework of a “ specializedjurisdiction ” because of its field ofapplication and the specific lawapplied. A reform started in 1988 wasat the origin of the integration ofmilitary justice into the Statejudicial power in order to safeguardthe principle of jurisdictional unityestablished by the 1978 Constitution.The Spanish military justice keeps aclear separation between commandersand jurisdiction. The judicial functionis assigned to the military legalbodies, excluding the command andcontrol bodies that had carried it outpreviously. It is administered byjudges and magistrates from thejudicial branch and as such“ independent, irremovable,responsible and only subjected tothe realm of law ”, according tothe Constitution.The Spanish military jurisdiction is not“corporative ”. Its attributions arerelated to the nature of the offense,neither to the condition ofthe supposed delinquent, nor tothe location where the eventsoccurred. Punishable behaviors ofcommon nature are not included in themilitary legislation, but in the ordinarylegislation, although a soldier isthe actor.The December 15, 1998 law onthe territorial organization of themilitary jurisdiction brought downthe number of territorial militarytribunals to 18 and adjusted theircompetence to the boundaries ofautonomous areas. They are gatheredaround five territorial tribunals.Two military tribunals areheadquartered in Madrid, withjurisdiction on the entireterritory ; a special military tribunalfor field grade officers is added to thisorganization. Moreover, a militarycourt is part of the Supreme Court.The February 3, 1999 organic law onthe disciplinary regulations for thearmed forces has adapted the formercode to the requirements of thecurrent all-volunteer armed forces andthus feminization. It makes adistinction between misdemeanors(34) and crimes (37) ; the disciplinaryactions taken can go up to thirty daysin custody for the first ones and up totwo months for the second ones.The jurisdictional supervision ofthe disciplinary power is given tomilitary tribunals.DOCTRINE # 04 34 SEPTEMBER 2004

foreign studiesStatus of Forces in InternationalMissionsThe legal protection of Spanishsoldiers deployed out of Spaindepends on the jurisdictionalcompetence and on the system ofrights and duties applied to the force.Cortes Generales ” 1 or the governmentif there is a preliminary authorization.As regards international jurisdictions,the evolution of the geopoliticalcontext has raised new problems.Despite globalization, the State hasbeen, until now, the primary body andthe custodian of a range of authoritysovereign State hold anextraterritoriality privilege according towhich they are everywhere subject tothe jurisdiction of their Nation oforigin. The opposition between boththese principles has grown from thesecond half of the XX th century, inparallel with the increase inMilitary courts of lawRegion IRegion IIRegion IIIRegion IVRegion VAutonomous regionmilitary tribunalsCentral military tribunalsTerritorial military tribunalsIn Spain, in peacetime, the militaryjurisdiction is exclusively limited to themilitary field. This takes into accountthe proceedings included in themilitary penal code and, by extension,its competence in all cases included inthe international agreements signedby Spain for forces out of hometerritory (Organic law 4/1987 on thecompetence and the organization ofthe military jurisdiction : Art. 12.3).In time of war, the July 15 organic law4/1987 includes an extension of thisfield ; but this decision relies on thelinked to its concept of sovereignty.The exercise of this sovereignty islimited to a territory. Consequently,the Nation-State induces the principleof territorial sovereignty according towhich an offence made inside itsborders cannot evade its penaljurisdiction. Nevertheless,the presence of foreign forces on aNation’s territory poses a conflict ofcompetence between the principle ofterritorial sovereignty - already evoked- and the “ principle of flag ”; accordingto this last principle, the forces of athe presence of soldiers outside theirown borders.The current demise of the Nation-State concept and the weakening ofpolitical structures resulting fromthe proliferation of civil wars impairthe practice of international law.Moreover, the generalization ofviolence in crises goes beyondnational framework, and legalambiguity jeopardizes the legitimationof military operations. The status offorces seems to be the only valid toolSEPTEMBER 2004 35 DOCTRINE # 04

to guarantee the legal status ofsoldiers in overseas operationaltheaters. A SOFA is an internationalagreement that is worked out to meeta specific situation. Today, beforeprojecting a force, it is necessary tonegotiate an agreement, on the onehand between the Nation or theinternational organization whichintegrates the forces and on the otherhand, the concerned Nation so thatthe status of forces is clearlyestablished. This agreement is highlyimportant because it is a guaranteefor projected forces and a conciliationtool for two sovereignties in conflict :the sovereignty of the Nation of originand that of the Nation which hosts theforces. The penal, disciplinary andadministrative fields, as well as theprivileges of the force and of itsmembers are the SOFA’s basis.In the operational field, the “ Rules OfEngagement ” (ROEs) are closelylinked to the operational mandate;they are a technical solution to reachplanned goals and a legal reference tolegitimate the action. ROEs are a toolfor commanders that endeavor toguide the use of force in the form ofallowances and denials. That is whythey are specific directives for thetroops ; the national authority isresponsible for their enforcementwhereas infringements are subject tothe Spanish military jurisdiction.• Operations Within the UN FrameworkThe status of a force which operateswith a mandate from the UnitedNations derives from articles 104 and105 of the Charter which lay downthe recognition of legal competence,the privileges and immunities ofthe Organization and of its members.These estimates were developed inthe Convention on UN privileges andimmunities (1946) and in theConvention on the UN manpower’ssafety (1994).This last agreement is enforced in U.N.operations decided by the competentauthority and carried out under UNcontrol and authority. The conventionrelies on the “ judge or extradite ”international law principle, whichenables a national legal authority tojudge the punishable behavior of itscitizens or to extradite the allegeddelinquent.The convention does not governcoercion operations authorized bythe Security Council within theframework of chapter VII of the UnitedNations Charter. This type of operationis regulated by the international law ofarmed conflicts. However, nothingprevents the human rightsenforcement with a universalcharacter as considered in article 20.The signature of a SOFA is necessarybetween the HN (Host Nation) forthe operation and UN. The firstdocument of this kind is the 1957“ regulation for UN contingencyforces ”. Today, SOFAs rely on thepattern resulting from resolution 4/89of the General Assembly. It consists often articles broken down into60 sections, which settle the legalstatus for the operation.This agreement establishes adifference between criminal and civiljurisdictions. As regards soldiers,immunity with respect to the penaljurisdiction of the host country isguaranteed, although a delinquent isaccountable for his acts before therespective national jurisdiction.On the other hand, all the members ofan operation are subject to the civiljurisdiction of the host country, exceptin the case of a request based on factsin connection with operations, whichfollows the procedure envisaged bythe SOFA.However, in many cases theseprovisions are not respected by localauthorities who act in an excessivelyindependent way and out ofinternational law in crisis or warsituations.Disciplinary measures remain anational responsibility. The span ofpossibilities is very large, butgenerally, the commanders of theSpanish force have the authority tosanction in the AOR (Area OfOperation). Misdemeanors aresanctioned in the theater, whereascriminals are repatriated and placedunder the responsibility of therelevant national authority.Eventually, the responsibility fordamages linked to operations carriedout by members of the force isassumed by the UN.• Operations Within a NATO FrameworkIf we disregard the debate on the legalbases for the latest NATOcommitments, the legal protection ofSpanish soldiers varies according tothe situation : peace, war or crisis.In a peacetime situation, the legalstatus of NATO personnel is set bythe 1951 London agreements (“ Statusof Forces Agreement ” or NATO SOFA)and by the MOU (Memorandum ofUnderstanding) and thesupplementary agreements onthe status of the permanentheadquarters (Paris, 1952). There areother secondary provisions such asthe agreements between the Atlanticorganization or one of its subordinatecommands and the Nations whichhost the forces or the NATOheadquarters or the agreementsbetween NATO members and PfP(Partnership for Peace) Nationsregarding the status of forces (PfPSOFA, Brussels 1995).In a situation of war, it is necessary tomake a distinction between the statusof NATO forces towards warringfactions or neutral countries and thestatus of an Alliance Member State onthe territory of another Member State.In the first case, the status of NATOforces is defined by the internationallaw of armed conflicts. As NATOcountries do not take part inadditional Protocol I, this treaty willnot deal with all the troops; but theywill be subject to international law. Inthe second case, the SOFA will remainvalid. Nevertheless, article 15 providesthat paragraphs 2 and 5 of article 8will not be applied to war damages.Moreover, the parties will be allowedto suspend or modify these agreementprovisions.DOCTRINE # 04 36 SEPTEMBER 2004

foreign studiesIn a crisis, operations go beyond theframework considered in article 5.These kinds of operations which - inNATO terminology - were initiallynicknamed “ Peace SupportOperations ” have become “ CrisisResponse Operations ” during theKosovo conflict in order to widen theoperational spectrum. The legalprotection of soldiers depends on theprecise definition of the kind ofoperation. If the label of “ war ”applies, the relevant legal status offorces is described in the precedingparagraph. On the other hand, ifoperations do not deserve this label,the status will be fixed by the status offorces agreed between the Alliance andthe HN (Host Nation) for the mission. Itshould be stressed that urgency and aweakened political power in the hostcountry deteriorate the referenceframework. Committed forces shouldnever remain without any legalprotection. Combat operations that arelikely to occur in this kind ofcommitment must abide by theinternational principles of the law ofarmed conflicts and of thehumanitarian international law.The participation of Spanish forces inthe Balkan conflicts shows the variouskinds of agreements which managethe legal status ofsoldiers in the theatre.In “ the militaryappendix ” of theDayton agreementsthere are the majorelements thatguarantee the legalprotection of forces :the “ mutatis mutandi ”application of UNprivileges and theexclusive competenceof the penal anddisciplinary jurisdiction of NATOMember States towards theirrespective forces. In short, it is amatter of ensuring the immunity ofmilitary personnel towards localauthorities and the submission of acase to the military jurisdiction in caseof reserves.• Other OperationsADC F. CHESNEAU/SIRPA TerreIn addition to the previous situations,any commitment within the WEU - nowEU - framework is the only one thatSpain has considered. The Petersbergdeclaration has enabled somemissions to be carried out ; the statusof forces varied according tooperations.There are no major differencesbetween the legal status of theSpanish forces within the framework ofNATO and the EU. As the EU does nothave a legal status, because theenvisaged SOFA was not approved of,the status of forces in operation wasnegotiated between the MemberStates and the HN (Host Nation).These agreements were supplementedwith other technical arrangementsbetween the forces’ commanders andthe local administrative authorities.1 In Spain, the “Cortes Generales” exert thelegislative power and are made up of the“ Congress of deputies ” and the Senate.ConclusionThe new geopolitical context, the progressive legitimation of the commitment principle - that is to say for chapters VI or VIIof the Charter of the United Nations -, and the evolution of the strategic concepts of the Western defense organizationsresulted into a significant increase in the commitment of Spanish forces in overseas operations.The perception of legal protection has become a fundamental factor for troops’ morale, in particular for the consequencesthat they could have for their NOKs (Next of Kin). The legal status of Spanish committed soldiers depends both on theinternational and national authorities.Compared to the first one, the presence of Spanish troops in a foreign country has resulted into a conflict betweensovereignties for which a solution relies on the operation’s SOFA. This instrument of international law includes variousparts ; but the penal and disciplinary fields are perceived as the keystone for the legal environment. SOFAs in forcerecognize the validity of the principles of territorial sovereignty and of the “ flag ”.In the problems of conflicting jurisdictions, national jurisdiction is applied preferably for offences that interfere withthe members or the properties of the Spanish forces or of other forces committed in the operation, in addition to offencesthat are service connected. As regards disciplinary responsibility, it is always conferred on Spanish authorities. In crisismanagement operations carried out in areas of conflict whose official structures do not grant any political credibility, theimmunity of jurisdiction is generally called upon in the status of forces.At a national level, military justice is a guarantee for the legal protection of Spanish forces. Indeed the military jurisdictionapplies generally to crimes or misdemeanors made by Spanish soldiers out of their home territory.SEPTEMBER 2004 37 DOCTRINE # 04

Stabilizationand Rebuilding OperationsAradical change in the strategic context has involved deep changes in terms ofcapabilities, structures and military doctrines of commitment those last few years.Static missions for the defense of homeland territory - specific to the bipolar period -have evolved towards dynamic overseas commitments, from humanitarian missions tohigh intensity operations, to cover the whole range of conflicts.Security has no longer a primarily military connotation and has become a largerconcept, with a multidimensional and multipurpose character, within the framework ofwhich the military tool is one of the major “ actors ” for action ; it operates alongsidethe diplomatic, economic and civil assistance components, in accordance with politicalguidelines.BY GENERAL GIACOMO GUARNERA, ITALIAN DEFENSE ATTACHÉ IN PARISIn modern scenarios, conventionalsymmetrical conflicts, characterized byprotracted high intensity warfare, arevery rare indeed. On the other hand,Crisis Response Operations (CROs) arevery frequent. They can include severaloperational activities undertakensimultaneously and requiringdiversified capabilities.The recent lessons learned in Iraq haveshown the extent to which the limitbetween Crisis Response Operationsand conventional war operations isnarrow or even non-existent, butespecially the extent to which thestabilization and rebuilding phaseproves to be essential, resolutive andcomplex at the same time.Indeed, to ensure order and safety,thus implementing the conditions for areal democratization of the country inwhich the forces are committed, it isnecessary to have a broad range ofcapabilities, enabling to carry out aheterogeneous set of activities, suchas disarmament, demobilization andthe rehabilitation of formercombatantsand refugees,humanitarian aid, without forgettingwar against guerrilla and terrorism,etc.It is a phenomenon whose appearancerenders the framework even morecomplex and on which we will comeback later in order to better specify theimplications in the military field.To deal with the new operationalrequirements characterizing modernscenarios, military tools must havedistinct but complementarycapabilities. They must be able to copewith the very combat missions, butalso with stabilization and rebuildingtasks.The Italian Army has launched aprocess of structural and capabilityreorganization for a long time throughwhich it has been possible for ourunits to take an important part in thenumerous commitments carried out onthe international scene.Currently, approximately 6,500 Italiansoldiers are committed overseas. Thedaily average for personnel committedin out-of-area operations during thelast 6 years amounts to about 8,000men.ADJ J.R. DRAHI/SIRPA TerreDOCTRINE # 04 38 SEPTEMBER 2004

foreign studiesIn addition to these soldiers, it isnecessary to add the soldiers taskedwith defending the homelandterritory, within the generalframework of anti-terrorism warfare :the protection of VPs (VulnerablePoints), nicknamed “ OperationDomino ”, has been carried out since2001 with an average of 4,000 mentasked to monitor almost 150 VPslocated in 88 provinces.Last year, the Italian Army committedapproximately 16,500 personnel onthe various operation theaters,whereas 10,000 men were committedfor “ Operation Domino ”, out of atotal of 26,500 personnel in one year,equivalent to 33 % of the operationalcomponent.This is only a brief presentation of anintense commitment, during whichtime the Italian Army has supportedpeace and international security onthe front line for more than ten years.These numerous operational activitieshave resulted into useful lessonslearned not only from nationalexperiences, but also from thosenurtured by other Armies.All international crises in the lastdecade (from the crisis in the Balkansuntil the most recent ones inAfghanistan and Iraq) have confirmedthe central role and the resolutivecharacter of the land componenttoward obtaining strategic objectives- in the field - as laid down bythe political level.Indeed, conflicts breaking out inpopulated areas during operations ofthis kind require the diffuse presenceof the land system, an essentialsecuring device to cope with crises.Lessons learned revealed severalother very important elements for theconstant updating of the futurecapabilities that the Army must have.We will only present the main ones.1) Success for a crisis managementoperation depends in particular ona careful planning for “ afterconflict” activities. To transform amilitary victory into a politicalvictory, we need in fact to conquer“ the hearts and minds ” of the civilpopulation, by helping it to restoreacceptable living conditions, torebuild the main installations, andto implement medical assistance,etc.2) Modern stabilization operationsmust be launched without stoppingthe whole of the operational cycle.Thus combat, stabilization andrebuilding activity planning have tobe carried out simultaneously, asan integral part of a single andlarger operation plan.3) Within the framework of astabilization and rebuildingoperation, the commander ofthe force has to operate both as amajor “ manager ” for stabilizationand rebuilding activities ;simultaneously he has to beresponsible for monitoring allthe forces committed in thetheater, and also by exercisingcommand and control for smallercombat operations whennecessary. Accordingly, it isnecessary to plan to integrate theknow-how shown on the tablewithin the command structure, inparticular during the initial phaseof the post-conflict period, beforethe civil structures begin to resumeoperations.• AOR SECURITY :. ROUTE SECURITY. FORCE PROTECTION. VPS’ DEFENSE/CONTROL• COUNTER-TERRORISM/GUERILLA WARFARE• CIMIC• EOD (EXPLOSIVE ORDNANCE DISPOSAL)• CROWD CONTROL• MILITARY INTELLIGENCE• HUMANITARIAN AID• TRANSPORTATION/SUPPLIES• MEDICAL SUPPORT• REBUILDING• RESTORING POWER• CRIME CONTROL• POLICE AND ARMED FORCES TRAINING• SUPPORT TO NGOS AND GOS4) As the situation is stabilized, it isnecessary - in the process of forcegeneration - to carry out thelightening of combat unitsincrementally. Action will focus onthe maintenance of long-termstability, through a closercoordination with the presentinternational organizations.5) It is essential to have a significantnumber of tactical support andlogistical assets, in order tosupport the units of theoperational component of the landforce properly and to achievestabilization and rebuildingactivities to the benefit of the civilpopulation.6) The “ Brigade Task Force ” approachchosen by the Army to definethe sets of forces to be committedindividually proved to be effective.Moreover, as stabilizationoperations carried out in the postconflictperiod last for quite awhile, it is necessary to have arobust set of major unit andbrigade commands to enable unitsto rotate and to providesustainability.In short, to face future challenges,lessons learned have confirmed thatland forces must include a vast rangeof capabilities as well ascomplementary and especiallyspecialized assets, necessary to carryout actions developed within theframework of a crisis managementoperation successfully, includingstabilization and rebuilding activities -specific to the after-conflict phase.In terms of forces, the componentsnecessary to conduct crisismanagement operations can beschematically gathered in three sets.- The first one composed of forcesable to implement an actual andlarge combat capability is alsoessential during the stabilization andrebuilding phase to meet foreseeablerisks and to graduate responses in aflexible and tailored-to-attack way ;and it is also an important element ofdeterrence.SEPTEMBER 2004 39 DOCTRINE # 04

NOVASCOOP.COM- Second - in theory at a level nolower than brigades - one must beable to secure large areas - and alsoto deny some of them. It must alsobe able to operate in an environmentas insidious as urban terrain, in thewhole range of missions includingclose combat in the event of antiguerrillaand counter-terrorismoperations.- Lastly, a third set of forces,composed of specialized units forstabilization and rebuildingoperations : Intelligence, CIMIC,PSYOPS, NBC, Engineers, Medicaland Transportation.Within this framework, so-calledgendarmerie forces can becommitted ; they are tasked withmissions typical of a police forcewith a military status, generallyentrusted to ensure law and order,to carry out criminal investigations,to fight against organized crime andto train local police forces.Each set of forces makes itscontribution to achieve the required“ end state ”, within a “ military ”security framework that must anyhowbe carried out before and during astabilization operation.The operational concept consisting incommitting - during stabilization andrebuilding operations - specializedunits in a synergistic andcomplementaryway compared tocombat units is notnew at all forthe Italian Army.To confirm it, it isonly necessary torefer to forcesdeployed onthe varioustheaters as yearsgo by.Still today, inthe Balkans, in operation “ AnticaBabilonia ” carried out in Iraq and inoperation “ ISAF ” in Afghanistan, theArmy commits “ combined-arms taskforces ” task-organized around acombat component, tasked to protect,including the above-mentionedspecialized components.NOVASCOOP.COMThe appearance of terrorism onthe international scene makes it moredifficult to task-organize and balancethe units designed to carry outmodern operations.Indeed, military operations thatoccurred on the international scene -following the September 11 attacks -resulted from the fact that terrorismmoved from an especially internal lawand order problem to aproblem of internationalsecurity.threat whose organizational andoperational factors represent anincreasing military connotation.It is within this framework that NATO’sNRF - NATO Response Force -initiative, whose planned operationsfor commitment can ideally be set in akind of “ overlapping zone ” betweenpeace-support and high-intensityoperations.In this “ transition zone ”, the limitbetween war and Peace SupportOperations (PSOs) is unspecified.For this reason, even whilestabilization scenarios progress, it isnecessary to commit Army specializedforces of gendarmerie-type units orMSUs, beside a significant number ofcombat units, within which SpecialOperations Forces (SOFs) and lightinfantry units trained for anti-guerrillaand counter-terrorism warfare, asoperations “ Licorne ” in Ivory Coastand in Haiti showed, where Franceapplied these concepts in asignificant way.Among Army specialized forcesoperating beside SOFs and lightinfantry units in the repression ofguerrilla and “ militarily ” organizedterrorism, there are units tasked tocarry out intelligence operations (EW -Electronic Warfare, observation,HUMINT at a tactical level), NBCunits, and EOD (Explosive OrdnanceDisposal) teams to neutralize, removeand destroy explosives, PSYOPS andCIMIC units.In addition, recent terrorist attacksagainst civil populations and againstthe array of forces and militaryfacilities in Iraq and Afghanistan,show that terrorism exploits urbaninstallations for its own ends to causenot only devastating effects on civilNOVASCOOP.COMDOCTRINE # 04 40 SEPTEMBER 2004Today, to meet terrorism, itis not only necessary toimplement a vast range ofpolitical and economicmeasures, but also tocommit forces able toneutralize and fight thisNOVASCOOP.COM

foreign studiesNOVASCOOP.COMincluding urban terrain.The initiatives undertaken inthis direction by the Italian Armyare numerous and, to beginwith, deal with training, specificcycles aiming to the acquisitionof a capability to operate inasymmetrical contexts and in allthe dimensions of urban terrain,including sub-surface.population but also important effectson military, political and economicplans.From this point of view, it is necessaryto increase and improve thecomponents that can meet andneutralize the asymmetrical andterrorist threats in any environmentNOVASCOOP.COMIn conclusion, the evolution of operational scenarios compelled the Italian Army toreorganize almost all its operational components, implying quality. As regardsmanpower, we moved from almost 290,000 personnel in 1991 to 115,000 today, andwe aim to reach 112,000 men and women in 2006. A decrease of 60% compared to15 years ago.Today, thanks to this rationalization process, the Army is able to implement almostall its (combat and specialized) units required to meet the needs associated withstabilization and rebuilding operations in a suitable way, by supplementing themwith the capabilities provided with other components of the military tool, dependingupon the mission to be carried out and upon the characteristics of the operationalenvironment.In practice, it is a unique set of forces within which synergies on the terrain - amongvarious components - result from a balanced and functional use of their respectiveand specific operational capabilities, derived from an ad hoc developed training anda structural organization.The capabilities optimization and improvement process has not yet been completed.At an organizational level, we consider to reinforce the SOF pool, to complementthe ISTAR-GE reservoir, within the general framework of capabilities associated withtactical intelligence, in particular to the benefit of units earmarked to observationand intelligence gathering, including HUMINT.We also consider to establish a set of medium forces particularly fitted to operate insophisticated environments, thanks to their mobility, protection and firepowercharacteristics.Obviously, the reinforcement process aims at a high joint- and multinational-orientedinteroperability level.Now we have to move forward in this way, in order to provide fast and effectiveanswers adapted to all possible missions.SEPTEMBER 2004 41 DOCTRINE # 04

Does the endJustify the Means ?“Unquestionably the bad has always persecuted the good, and the good the bad; some servetheir passions, others serve charity. The murderer does not care about what he tears apart -the medical doctor is concerned about what he cuts. One seeks welfare - the other, decay ...In other words, which one acts in the name of the truth, which one is impious, which one harms,and which one cares” 1 Saint AUGUSTINBY LIEUTENANT-COLONEL JÉRÔME CARIO, CENTER FOR FORCE EMPLOYMENT DOCTRINE (CDEF) LESSONS LEARNED DIVISION (DREX)If the condemnation of “ violence ” is a fullylegitimate principle per se, disarming therighteous allows others to perpetrate acts ofviolence. Therefore a justice order should beable to use force all the more as the righteouscould be threatened by injustice and terrordisorders.On the question of what is just and unjust, moralreferences are obvious and legal steps areimplicit. Warfare, a human - or inhuman - activitydoes not escape this phenomenon - because atwar freedom and the responsibility of man are atrisk. That is why the choice among the meansand ways to fight is not unlimited.Lacking any universal legislator and a lawenforcement workforce, States have to developand enforce laws. In the “ jus in bello ” matters,States should give priority to securityimperatives - that is their principal mission, andnot to draw international laws to suit their ownwarfare practices...So, beyond the philosophical,ideological, or religious differences, States haveto allow for a minimum of obligations, simplybecause of charity and humanity principles, andalso because of self-interest.Gradually, ethics and law lead one to recognizethat an enemy should be respected. This is thereason why, nowadays, in matter of internationallaw a reference to “ humanitarianconsiderations ” tends to become mandatory andwhy it does not tolerate violence. Further, if thecombatant is the one who, through his ownaction, inflicts suffering on the victim, let us notforget that humanitarian law was born on thebattlefield to protect the combatant whobecomes a victim as soon as he is disabled. Thissustained trend of humanitarian law howeverconflicts with a certain evolution of warfare thathas resulted in the depiction of the enemy as anon-human Devil. But then, if torture is a form ofviolence forbidden by law, doesn’t it become “ amilitary necessity ” in a lawless conflict,especially against an enemy deprived of anysense of honor ?Inter Arma Caritas 2The humanitarian principle should develop in theconscience of the human being to fight the“ animus belligerandi ”.- Respect for the enemyIt has not always been so, however it is nowforbidden to inflict no quarter - to finish off thewounded that, on the contrary, should bereceiving care. Under any circumstances, thecombatant who falls at hand of his enemy isentitled to a human treatment, to the respect ofhis person and of his honor. These generalprinciples protect him from any violence orintimidation, insults, public curiosity, physical ormoral torture, and no constraints should forcehim to give out information.The captured enemy is a prisoner of war from themoment he has a regular combatant status.Moreover, the way prisoners and populations aretreated in an occupied territory is the bestindication about the character of a civilizationand of the nations. So, the Third GenevaConvention, concerning the protection ofprisoners, states that their repatriation is to takeDOCTRINE # 04 42 SEPTEMBER 2004

freedom of speechCCH J.J. CHATARD/SIRPA Terreplace as soon as the hostilities are ended. 3 Thisprinciple is most important as it precludes theencouragement of slavery when the victoriouscountries would be tempted to make use of thissubmissive and cheap workforce to participatein reconstruction on pretext of some collectiveresponsibility.So not everything is allowed in war. Those who,as Clausewitz, think that war “ is an act ofviolence, and there is no limit in the expressionof this violence... In matters as dangerous aswar, mistakes resulting from kindness arecatastrophic... It is impossible to moderate theprinciples of the philosophy of war withoutcausing some nonsense ” should be remindedthat the end does not justify the means.- The limitation of combat means and processesThis principle is taken up in the “ jus in bello ”.Confirming and building on the “ Law of TheHague”, the “Geneva Law” endeavors to protectindividuals from war effects by restricting the combatprocesses and means. 4In spite of moral requirements and regardless ofa States’ commitments, we can only note amost recurrent neglect of the most elementaryrules. That is why, in Manila, Alexander HAYchairman of the ICRC, addressed the States withthis cry of alarm : “ the increase ofindiscriminate violence, and repeated breachesto the basic humanitarian principles, are takingdreadful proportions particularly during conflictsof an ideological or racial character -in internalas well as in international conflicts - duringwhich the struggle has now taken the form oftotal war. All excuses are used to justify theunjustifiable: military necessities or imperatives,security, last recourse for subjugatedcommunities. What will become of humanity ifideology precludes from considering man in adefenseless enemy... ” 5Is Torture a Military Necessity ?It is the advent of total war that has lead to therepudiation of the enemy. Ideology suddenlyemerged on the battlefield. Together with thecrusades against totalitarianism, wars ofnational liberation, and revolutionary wars forthe conquest of power, “ wars ” wich pretend tojustify any violence, will prevail.- The enemy “ demonizing” or“ dehumanization”In these wars, the opponent is no more anenemy to wage war against, and then to makepeace with. He is regarded as a scoundrelcondemned to perish. An ideological war is thenprolonged in internment camps along withindoctrination and brainwashing. The atrocity ofthe struggle is amazing. This concept of war is“ perfectly ” depicted in the report of generalWesterman to the Convention in 1793 : “ Vendéedoes not exist anymore! It has died ; it hassuccumbed to our redeeming sword, togetherwith the women andchildren. It sunk in theswamps of Savenay.I have crushed thechildren under thehooves of my cavalry,I have slaughtered thewomen, they will nomore breed bandits.I cannot reproach myselftaking one singleprisoner.I wiped out everything...The roads are strewnwith bodies. There are somany, that in variousplaces they formpyramids. ”Hatred is always readyto exploit the minds.To Che Guevara, hatredis even the core ofthe revolutionarymilitary concept :SEPTEMBER 2004 43 DOCTRINE # 04

“ Hatred is an element of the fight. Staunchhatred of the enemy... makes man an efficient,selective, and controlled killing machine. Oursoldiers have to behave in this way ; peoplewithout hatred cannot overcome the enemy. ”In modern warfare, it is the resort to guerrillatactics that, since 1945, has become thepreferred method to force political changes ; itsprinciple consists in blending in with thepopulation, even though the Law of Land Warfareis founded on the discrimination principle, that isto say on the distinction between civilian andmilitary. Suffering and terror have been turnedinto weapons- In such conditions of “ demonizing ” or“ dehumanization ” of the enemy, could nottorture 6 be a military need ?The moralist will immediately answer negativelyto this question. Likewise, he will declare thatkilling is forbidden by making reference to theDecalogue and to ethics, and he is right. As amatter of fact, in 866, Pope Nicholas I requestedtorture to be rejected for collecting legalevidence. Indeed, torture used as a physicalmean to extract an admission or to confess a sin,deprives the victim his freedom and force him totake the blame for anything and everything inorder to escape death. However, we are notmoralists and we cannot ignore the consciencedilemma set upon those who had to face and tofight blind terrorism.The torturer tries to inflict pain, not onlyphysically, but also mentally. Torture consists inconsciously causing sufferings. This is whatmakes it clearly different from the pure combat. 7Often used during guerrilla and revolutionarywars to collect information, torture isinconsistent with the respect due to humanbeings. Though forbidden by law, there arecountless occurrences of man torturing hisfellow man. Let us classify them into three maincategories.Used as a combat process, torture will alwaysthreaten to arouse reprehensible cruelty by theimposing party.- The horror atmosphereOne of the reasons that could lead a man or agroup to systematically torture is the intent toinflame horror. That horror atmosphere isintended to suppress the will to fight. It isexpected to remove the combat option out of anypolitical calculations, and out of any equationdealing with advantages and disadvantages.Horror forces war to enter the domain of theinexpiable from which any peaceful andnegotiated solution, and any compromise arebanned. Those who initiate it in order to compelhalfhearted, indifferent and cowardly people,even their enemy to fight, jeopardize anypossibility for peace talks. It is the blood bath ofterrorism or the atrocities of concentation camps.So, to rely on terror is to fanaticize men and tobet on individual and collective sadism. Again,torture and its aims are to be condemned.The will to generate an inexpiable war is criminalin two ways : first because of the means used -fanaticism and sadism ; then, and moreimportantly, because of its purpose - it isinhumane to turn war into an inextinguishablestruggle, without any political solution, withoutno other objective than exterminating theadversary.War is a political matter ; it should be kept insidethe limits of a political design ; it is thedeliberate rupture of a peaceful order only inview of establishing a better new order. However,sadism that generates horror, focuses on thenegation of any human order, away from anypeaceful solution. The excuse of bolstering a“ national cement ” in a war for nationalliberation through the use of terrorism strictlyspeaks evil.( )War is a political matter ; it should be kept inside the limits of apolitical design ; it is the deliberate rupture of a peaceful orderonly in view of establishing a better new order.It is understandable that when facing suchattempts, a society 8 that intends to remainhumane and to fiercely preserves its love forpeace, should keep its self-control, andovercome horror and anger feelings to resisttemptation to crime. In addition, it will have tovigorously combat this terrible and barbarianenemy while rejecting to fight on this newprovince - that of inextinguishable hatred.- The fear weaponAnother reason, although quite different, isthe will to frighten the adversary and those whohesitate. When a party or a power does notsucceed in overcoming its adversary throughnormal war methods, such as upheaval andrepression, it may decide to use abnormal meansto discourage or intimidate, in order to multiplyhis combat ratio.In war, where violence prevails, the temptation isgreat for the one that risks everything but haslost all hope of conciliation through the politicalDOCTRINE # 04 44 SEPTEMBER 2004

freedom of speechCREDIT PHOTOS/ONUmeans to revert to the mostsavage means to wreck theenemy’s spirit. Torture mayappear when one of thebelligerents, most often theaggressor, sees victory slipaway. In major warfare it isreplaced by other equivalent means :asphyxiating gas, napalm, bombing of civilianpopulations, genocide... Likewise, when theimportance of control means drives thebelligerents to the wall, those who want to winat all costs will not hesitate to multiply theircombat ratio by the one of the effective humanfactor, fear. We should condemn resorting to suchinhumane practices.However, lacking an international agreementbanning unfair aggression, it is impossible toactually restrict war means without automaticallyfavoring the unscrupulous enemy.If the rebel has decided to engage in a ruthlessbattle against legal authorities, isn’t heresponsible for the discord, and therefore,shouldn’t he suffer the consequences ?- Is the right to act in selfdefenseinclude the use oftorture ?In civilized countries, the rightof self-defense is a Stateprerogative, and the user doesit on behalf of the citizens fromwhom he received thisparticular power. Otherwise,the State would encourageindividuals, and combatants toengage in atrocities such as those discussedhere and that are scandalous, simply criminal.On the other hand, doesn’t theinsurgent lose his right to liberty and todignity from the very fact of hisrebellion ? Underground activities,terrorism, the two components of therevolutionary war, degrade man. It iseasily conceivable that the power or theauthority feels helpless in view of thoseaggressions, however isn’t it the primeduty of the State to safeguard apeaceful order for the people’s life andproperties ? Isn’t it its strict duty and itsright to make all attempts to obtaininformation, from those who know, in order toprotect innocent lives ?Although torture will remain illegal, but as warscan be regarded as unfounded and/or illegal byinternational laws, doesn’t it receive somelegitimacy in this particular context ? Indeed,the aim oftorture ismerely to get apiece ofinformationand to forcethe individualto disclosewhat he knowsto avoid sufferings. It is some kind of deal - thelife or the death of a person for the life or thedeath of ten, twenty, one hundred, onethousand, two thousand people ; - life or deathfor a secret. Some maintain that the moral valueof torture depends on the value of this secret.However is it possible to know in advance aboutthe value of a secret ?While considering these various arguments, letus guard against giving carte blanche tolegitimate powers and/or to their officials.A society cannot act arbitrarily against theinterest and the rights of any one of its members.Torture is a dangerous tool and must never beconsidered to be a normalcombat asset. Even in a justand necessary war, effectivemeans are not all thatjustifiable to those who getan exact and sound view ofjustice - the foundation ofmilitary honor.1 This quotation of St. Augustin sets the issue of the endand means, it should take us to a more detailed approachof the violence phenomenon and particularly of war.2 “ Charity amongst arms ” or “ Humanity in the roar ofarmaments ” is the motto of the Red Cross internationalorganization and of the Red Crescent.3 Article 118 of the third Geneva Convention, states “ thatat the end of active hostilities, the prisoners of war are tobe released and repatriated as soon as possible. ”4 Protocol 1 to the Geneva Conventions includes two basicrules :- In any armed conflict, the right of the warring partiesto choose the processes or the means of the war is notunlimited.- It is forbidden to use weapons, projectiles, andmaterials, as well as combat processes that couldcause more harm than necessary (Article 35).5 Manila address, 1989. International journal of the RedCross and of the Red Crescent.6 “ Torture is a significant brutality or a series of painful,inhumane, or degrading ill-treatments, that are systemicsearch for pain from the one who forces it onto hisvictims.” Convention for the abolition of torture adoptedon December 10, 1984 by the General Assembly of theUnited Nations and ratified by 102 States.7 TTA (FM) 173 Army regulation for the interrogation of prisonersof war. 19748 And consequently its armed forces.SEPTEMBER 2004 45 DOCTRINE # 04

The Military Commanderand War Crimes“Theweight of responsibility is such (at war) that not so many men are able to carry it all. That iswhy the highest spirit values are not enough to face it. Possibly, cleverness makes it easier andinstinct could admittedly be an incentive, however the decisive impulse for decision is of a moralenature.”Charles de Gaulle, le fil de l’épée.BY SÉBASTIEN BOTREAU-BONNETERRE, 1 OF THE FRENCH DEFENSE LEGAL SERVICES AGENCYHuman activity gets structured while growing.This build-up is bound to go throughthe definition of the legal rules that settle humanactivities. War, a several hundred years old socialactivity, is no exception. Therefore, because ofa continuous strive for an optimal militaryeffectiveness, the poorly organized armed gangsof the origins evolved into the highly structuredmodern military units. A disciplined evolutionhas been made possible thanks to the law thatsets its modalities and its limits.The capacity to command, the “ imperium ”,inherent to the military, simultaneously increasesthe commander’s duties. The notion of thecommander’s responsibility is all the more acutewhen the core of military activities is considered,i.e. combat operations - obviously ruled bythe laws of armed conflicts. And among the rulesof such complex laws, some are seen as soimportant that, whenever infringed, they makeup a special category of international crimes -war crimes.During out-of-area operations, the commandingofficer, either company grade officer, field gradeofficer, or general officer, could be confrontedwith war crime. If one of his soldiers is accusedof committing such an act, his responsibility ascommanding officer is to be implicated, or if he ishimself suspected of such an act he could bepersonally liable, even if he was merely obeyingseemingly sound orders. Therefore it isnecessary to detail those relationships.The war crimes category is usually perceived asa threat to the warrior, as a sword of Damocles,but this is not fully true. To correctly deal withthe commander’s responsibility in matters of warcrimes, it is necessary to first demythologizethose crimes. Then, as a further step, it will bepossible to expand on the matter of thecommanders’ responsibility inside the chain ofcommand.The War Crime DefinitionWar crime, incrimination submitted to conditionsWar crimes are defined as “ acts of violenceagainst people or properties that areoverstepping the limits that the war laws set aslegitimate to the armed forces ” 2 that is to say anact of violence contrary to the war laws andcustom. An example could be the murder of aprisoner of war. Committing such an unlawful actis likely to render its author criminally liable.We should be careful not to confuse war crimesand other international crimes such as crimesagainst humanity and genocide, both of thembeing characterized by a specific wrong -the negation of the human being.War crime incrimination is complex in itsimplementation because of its internationalistDOCTRINE # 04 46 SEPTEMBER 2004

freedom of speechorigins. “The “ war crime ” qualification supposesinfringing upon international law and ordinarymilitary law” 3 . That is to say that the Stateshould get a legal organization capable ofsuppressing breaches to the law of armedconflicts. The States themselves should carry outthe suppression of war crimes. Internationaljurisdictions 4 should be called upon only whenStates are not able to judge their own warcriminals by themselves. 5Article 8 of the Statute of the InternationalCriminal Court draws an inventory of allbreaches of the law of armed conflicts that canbe described as war crimes and over whichthe Court will exercise jurisdiction. They willsoon receive an equivalent in the French law. 6For a war crime to be committed, the practicalact (hitting, killing, bombing...) should takeplace during an armed conflict 7 . The notion ofarmed conflict depends on a reality assessment; it is not linked to the situation assessmentmade by the political authorities. The mandateor the mission of the operation does not matter; so the fact that the Security Council ofthe United Nations could have authorizedthe operation or that it has been carried out forhumanitarian purposes is not relevant.The judge will consider the real situation, hewill have to determine whether the actualviolence in the said area was at a such a levelas to consider that it was not a peace timesituation 8 . According to French law, war crime isestablished from the moment thatit is an act condemned by the InternationalCriminal Court, and that it takes place inthe framework of armed conflict.The Intentional Nature of War CrimeA war crime is an intentional one. It isthe consequence of an act considered to havebeen consciously committed. There is no warcrime unintentionally committed. That is why incase of a genuine mistake, its author’sresponsibility cannot be pursued.That is a fundamental aspect of the law of armedconflicts. In the confusion inherent in the militaryactivities, each fact should be carefullyconsidered before deciding that there is a warcrime.Article 27 of the statute of the ICC points out thatthe official capacity (Head of State, secretary, ormilitary) of the one indicted with war crimecannot exempt him from criminal responsibility.There is no special immunity. 9It is a constant fact that regardingthe commander, the higher his position, the morehe is supposed to know about the laws ofthe armed conflicts and the more he is likely tobe considered as responsible. It is not possibleCCH J.J. CHATARD/SIRPA TerreSEPTEMBER 2004 47 DOCTRINE # 04

to claim a lack of knowledge of sometimes verysubtle measures of the law of armed conflicts.As a matter of fact, no one can be regarded asignorant of the law. Moreover, it is always possiblefor the commander to get informed by his legaladvisers 10 . In France, it could bethe commanding officer’s legal adviser, the legalcell of the armed forces general staff, or the legaldirectory of the department of defense.Impact of War Crime on the RelationshipsWithin the Chain of CommandThe Responsibility of the Commander asthe Authority Issuing OrdersThe responsibility of the commander for those actscommitted by his troops is the other sideof his command authority. The dimension ofthe commander’s position derives from thisresponsibility. In the framework of the criminal lawof armed conflicts, contrary to other legal matters,this responsibility is not automatically implicated.The commander is responsible for criminal acts(NO ONE CAN BE REGARDED)AS IGNORANT OF THE LAW.committed by subordinates, only when because ofpoor command leadership he has not attempted toprevent a criminal act, or when he has not orderedpunishment if the crime has already beenperpetrated.According to the law of armed conflicts,the higher echelon is defined as the one holdingpower or authority, by law or de facto, to prevent asubordinate from committing a crime or to punishhim afterwards. The criterion isthe effective command and control ofthe commander on the forces under his command.As a result, “ as long as a commander reallycontrols his subordinates, and in so far as he hasthe capacity to prevent them from committingcrimes or to punish them afterwards, he could beregarded as responsible for those crimes if he doesnot exercise such command and controlproperly ” 11 .In the event of a subordinate about to commit (orhaving committed) a war crime, the commander isresponsible only if he has knowledge of it, or if heshould have known what was being planned, and ifhe has taken no action with the available means tostop or repress the crime. 12Therefore, the commander’s responsibility is farfrom utter failure. His participation in criminal actscommitted by his subordinates is placed underspecific conditions. It is possible to note somedilution of responsibility when escalating the chainof command. The presumption of knowledge is tobe assessed higher for a platoon leader, becauseof the limited number of soldiers under hiscommand, than for the higher strategiccommanding officer of a multinational forceseveral thousand men strong. Nevertheless,the knowledge condition is a matter of practicalassessment, and with the modern communicationmeans, the commander could be more easily seenresponsible if he does not order an inquiry into thecommitted crimes 13 .Defense Resources of the Subordinates -the Superior orderIn international law, superior order is a harshlydiscussed matter, especially since the Statute ofthe International Criminal Court has been drafted 14 .Its position clearly departs from those previouslyaccepted.Criminal law as enacted atthe trial of Nuremberg 15categorically rejectssuperior orders to relieveresponsibility. Theresponsibility of the authoris in no way changed bysuperior orders, those are only considered whenthe sentence is pronounced. Superior order is apersonalization factor of the sentence leaving fullresponsibility for the committed crime. Thisrigorous position currently is the French one,however because of the Statute of theInternational Criminal Court the French law willhave to be adapted.The Statute of the International Criminal Courtforced this concept to evolve. Superior order couldrelieve responsibility under three conditions. First,it is necessary that the author of the act, eithermilitary or civilian, had a legal obligation to obeyorders from the government or from the superior.Second, this person should not have known thatthe order was unlawful 16 . And thirdly, the receivedorder should not have been manifestly unlawful.This solution appears to be much more adapted tomilitary realities.The “ manifestly unlawful ”condition proves to be necessary to keep discipline- the foundation of the armed forces. It is worthnoting that subordinate echelons rather easilyperceive obvious unlawful orders. Orderingprisoners to be killed or tortured should leave nodoubt to anybody about the breach of the law bysuch an order.DOCTRINE # 04 48 SEPTEMBER 2004

freedom of speechConclusionTPIRThe war crime notion restrainsdisorderly behavior of mensubjected to extraordinarystrain. That is why it particularly applies toofficers. It is through their example only, theirrejection of compromise, and their high moralevalues, that the combat operations they carry outin the name of their Nation get their relevance.The function of the lawyer, all in all a minor one,is to make this natural principle very clear to themajority.1 A senior official at the French DLSA (Defense Legal ServicesAgency), a doctor in public law, and a member of the ResearchCenter for basic legal rights at the University of Caen.The included comments are the only responsibility of theirauthor and are in no way an official position neither of theFrench DOD nor of any other body.2 BASTID (S.), Law for international crises, Paris, Law courses,1959-1960 , leaflet 1, p. 40.3 DONNEDIEU DE VABRES (H.), “ Rapport général “, in GRAVEN(J.) (dir.), International Conference of Criminal law, ProceedingsV. Paris, Sirey, 1952, p. 136.4 It is so for the international tribunals for the Former Yugoslaviaand for Rwanda. The Security Council, their initiator, havingconsidered that the concerned States were not able to judgethe committed atrocities.5 As for the International Criminal Court, it is acting only whenthe State Party to the Statute cannot or is not up to investigateinto the crimes committed on its territory or into crimes implicatingone of its nationals. It leads to think that there is notmuch risk seeing the International Criminal Court taking proceedingsagainst French nationals, because of the advancedand robust legal structures of France.6 A bill for adapting into the French law the incriminationsdepicted in the Statute of the International Criminal court isbeing drafted by the relevant services inside the variousconcerned departments, among which the DOD. We can sensiblyexpect this bill to be submitted to the national representativesbefore the end of the year 2005.7 No discrimination is made between international and noninternationalarmed conflicts. The ongoing French military operationsare out of area operations, the violent phases of whichwill quite probably be qualified as international armed conflicts.8 The forces concentration, equipment, tensions are as manyfactors for assessing the intensity of a situation.9 As a matter of fact, Article 124 of the Statute of the ICCprevents it pursuing, for a period of seven years, possible warcrimes committed by nationals of those States having requiredthe benefit of this disposition, as France did, however it is notan immunity clause. The State should carry out an investigation,and, when necessary, to put to trial the possible warcrimes committed by its nationals. In case of ill will, the Statewould be internationally liable.10 That is an obligation provided for by Article 82 of the firstadditional protocol to the four Geneva Conventions dated 1949,ratified by France in 2001.11 International Tribunal for the Former Yugoslavia, chamber ofappeals, Prosecutor c/ Zejnil Delalic and others (Case Celibici)February 20th, 2001, §198.12 See the exact wording at Article 28 a) of the Statute ofthe International Criminal Court.13 The function of the judge advocates proves to be important toprotect officers. Their investigations immediately afterthe facts could discharge the responsibility of the commander,excluding him from possible accusations.14 See GARRAWAY (C.), “ Superior orders and the InternationalCriminal Court : Justice delivered or justice denied “, Revueinternationale de la Croix-Rouge (IRRC), 1999, pp. 790-792, aswell as DUFOUR (G.), “ La défense d’ordre supérieur existet-ellevraiment ? “, IRRC, 2000, pp. 986-98715 This superior order concept has been accepted for the internationaltribunals for the Former Yugoslavia and for Rwanda.16 It is worth noting that Article 33 § 2 stipulates manifestlyunlawful the order to commit genocide or crime againsthumanity.SEPTEMBER 2004 49 DOCTRINE # 04

The Legal Frameworkof the European Union Military OperationsOperation ARTEMISin the Democratic Republic of CongoThe 1 st of September 2003 saw the end of the mandate given to the emergency interim multinationalforce at Bunia in the Democratic Republic of Congo. The “Artémis ” operation was brought to an end,as planned, only just three months after its beginning based on resolution N° 1484 of the United NationsSecurity Council dated May 30, 2003. This European Union military operation, which encompassednumerous security, humanitarian and political 1 stakes, was also to confirm the military capabilities ofthe European Union in the field of crisis management and, from there, to materialize the commonEuropean policy in terms of security and defense (S.D.E.P.). The “Artémis ” operation wasn’t indeed thefirst military operation of the European Union. The “ Concordia ” operation, conducted from March toDecember 2003 in the former Yugoslavia Republic of Macedonia, marked the beginning of the Union asa military player. However, it was backed up on the assets of the North Atlantic Treaty Organization(N.A.T.O.).BY CAPTAIN FRÉDÉRIC JORAM*, LEGAL AFFFAIRS DIVISION, FRENCH AIR FORCE ADMINISTRATIONTherefore, the operation in the D.R.C. wasthe first autonomous military operation ofthe European Union, conducted with its owncommand and control capabilities. It was placedunder the political control and strategic directionof the permanent political and military bodiescreated for the implementation of the S.D.E.P.The European Union Council, the SecretaryGeneral - high representative, the security andpolitical committee (SPCo), the militarycommittee, the European Union staff andthe Council general secretary were all involved inthe preparation, the monitoring and the controlof the “ Artémis ” operation. The chain ofcommand was, as it was concerned, made up ofnon-permanent structures, created for theoperation. The commander of the operation hada strategic level staff called “ OperationHeadquarters ” (O.H.Q) located in Paris, andthe force commander had a force staff located atEntebbe in Uganda, the “ Force Headquarters ”(F.H.Q).Besides this new and continuously evolvingpolitical and institutional framework, it is todayuseful to come back over the legal characteristicsof the European Union military operations, whichare, from now on, an additional action frameworkfor the French armed forces.A New Legal Framework for Peace OperationsSimilarly to the majority of national or AtlanticAlliance missions, the “ Artémis ” operation wasfalling under the framework of a mandate ofthe United Nations Security Council. Based onchapter VII of the United Nations Charta, thisframework authorized the recourse to force inorder to contribute to stabilize the securityconditions in Bunia and improve thehumanitarian situation there, to ensurethe protection of the airport and of displacedpersons located in the camps of Bunia and,should the situation require it, to contribute toDOCTRINE # 04 50 SEPTEMBER 2004

freedom of speechensure the security of the civilianpopulation and of the UnitedNations and humanitarianorganizations personnel in thetown. 2 Therefore, the noveltydoes not lie there, but inthe specific legal framework ofany European Union militaryoperation.Unanimously adopted by theMember States 3 , the legal actsof the Union Council bear aconstraining politicalcharacteristic.For the “ Artémis ” operation, the common actionmade on June 5, 2003 4 appointed the lead nationand the commanders of the operation and theforce, approved the operation plan (OPLAN),authorized the rules of engagement, decidedupon the launching of the operationand gave the political control and the strategicdirection to the SPCo. In accordance with thiscommon action, a Council decision launchedthe operation on June 12.The European Union drafted several operationalconcepts, one of which, adopted in November2002, receiving the agreement of the MemberStates, pertains to the recourse to force 5 .European equivalent to the NATO M.C. 6 362document, it contains a very similar list of rulesof engagement, directly usable in the selectionof the recourse to force rules that pertain to eachoperation. The procedure pertaining to the rulesof engagement (authorization, implementation,request) is also stated therein ; it involvesthe legal advisor. This type of document, whoseusefulness has been demonstrated duringAtlantic Alliance operations, is, notably, aguarantee of interoperability betweenthe various national contingents making up aforce. In multinational operations, the rules ofengagement, authorized by a political authority,make up the favored tool of the control exercisedby the Member States.Furthermore, an agreement on the status offorces (S.O.F.A 7 ), resulting from the agreementof a State to deploy a force on its territory, hasbeen finalized with Uganda, host nationwelcoming the general support base intendedfor joint general support (joint general supportbase - J.G.S.B.) and the force staff (F.H.Q).This agreement notably contained provisionsconcerning the free entry in the territory,the wearing of uniforms and carrying ofweapons, duties and taxes on imports andre-exports, compensation for damages andCCH J.J. CHATARD/SIRPA Terrejurisdiction privileges. Adopted on the basisof a France-Uganda agreement 8 , this statuteincluded an exception to article 24 ofthe European Union Treaty. In this latter oneindeed it is stated forth that the European UnionCouncil concludes agreements on the status offorces of the European Union, based on arecommendation from the presidency.At the time of the “ Artémis ” operationthe European Union did not have an agreementon the status of Member States citizens basedin another Member State. The presence in Franceof non-French representatives from the O.H.Q,European citizens or not, has not been subjectto a specific status. This deficiency will soon besettled when Member States have approvedthe text they have recently signed 9 .This “ internal EU S.O.F.A. ” will then becomethe European equivalent of the June 19, 1951London convention pertaining to the status offorces of NATO which is called “ NATO S.O.F.A. ”.The links between those two texts are indeedenvisaged in the agreement concerningthe European Union status of forces. This latteragreement will be applicable to HQs, forces andtheir personnel assigned by the European Unionfor the preparation and the execution ofthe Petersberg missions, when their status isnot to be covered by any other agreement.Lastly, some other conventional acts might haveto be concluded by the European Union onthe occasion of a military operation : agreementbetween Member States concerning the mutualrenunciation to claim compensations in case ofprejudice to persons and damages to properties,general agreement on the participation of thirdparty States in the Union military operation,arrangements concerning the exchange ofclassified information with third party States orinternational organizations and, possibly,agreement between the European Union andNATO on the security of information.SEPTEMBER 2004 51 DOCTRINE # 04

Recurring Legal IssuesThe legal issues faced during the “Artémis ”operation are similar to the ones raised by anypeace support operation involving the recourse tothe armed force. A few examples demonstrate this.Adopted before or at the beginning ofthe operation, the rules of engagement do notprejudge the legal framework of the recourse toforce. In fact, this latter one will be imposed bycircumstances. The law concerning armed conflictsis the only one conceived to regulate the conductof hostilities, but its applicability is not alwaysobvious. Thus, in most cases, the recourse to forceremains subject to the sole provisions stated forthin the national criminal law of the militariesengaged in the operation. This situation mightraise some interoperability problems betweennational contingents that are to be taken intoaccount by the operation and force commanders.As other international forces under similarcircumstances, the multinational emergencyinterim force had to arrest armed individualsthreatening its members or hindering thefulfillment of the mission. Due to the lack of localjudicial authorities to which these persons couldbe handed over, the force might be compelled todetain them a few hours. Then, the question ofthe applicable legal regulations is raised.The P.O.W. regulations stated forth in the thirdGeneva Convention being only applicable in aninternational armed conflict situation, one shouldtry to organize the detention conditions inaccordance with the human rights international law.The presence and the intense activity ofthe contingents deployed in Uganda and inthe Democratic Republic of Congo have inevitablygenerated extra-agreement contentious. The policyconcerning damage compensation falls underthe responsibility of national authorities and eachcontingent is consequently responsible for it onthe theater. As far as France is concerned,the amicable compensation for damages has beencarried out by the Theater Administration Direction,in cooperation with the direction of legal affairs.Last, the deployment of forces in a geographicalarea marked by genocides, crimes againsthumanity and war crimes raises the question ofthe cooperation with the international criminaljurisdictions. In the near future, the InternationalCriminal Court (I.C.C.) could open its firstinvestigation and its prosecutor has publicly statedhis concern as far as the events that occurred inthe D.R.C. are concerned. It is normal for theprosecutor of the Court to wish to rely on thepresence of an international force or, at the end ofthe operation, on the information gathered by it.This question will now have to be taken intoconsideration for any future crisis managementoperation, as it implies the drafting of acooperation procedure with the I.C.C. and notably,an allocation of roles between the Statesparticipating in the operation and the EuropeanUnion itself.* Assigned to the office of armed conflicts legal affairs of the directionof legal affairs of the defense ministry, the Air Force Administrationcaptain Joram dealt with the responsibilities of legal advisorto the “Artémis” operation commander.1 Cf. notably the institutional press of the defense ministry (Arméesd’aujourd’hui n°282, July-August 2003, pp. 17-18 ; Air actualitésn°563 July 2003, pp. 4-7 ; Terre Info Magazine, n°147, September2003, pp. 16-23 ; Air actualités n°564 August-September 2003,pp. 4-7 ; Armées d’aujourd’hui n°284, October 2003, p. 32-52 ;Terre Info Magazine, n°148, October 2003, pp. 18-21 ; Air actualitésn°656 October 2003, pp. 9-29). About the situation in theDemocratic Republic of Congo before the “Artémis” operationplease refer notably to the recent book of Colette Braeckman,The new predators. Policy of powers in Central Africa, Fayard,2003, 310 pages.2 Resolution n°1484 of the United Nations Security Council datedMay 30, 2003, paragraphs 1 and 4.3 Cf. article 23 of the European Union Treaty. However paragraph1 of article 23 still renders it possible for certain Member States,based on the principle of constructive abstention, for not participatingin the vote without all the same jeopardizing the adoptionof the common action.4 Official journal of the European Union n°L143 dated 11.06.2003,p. 50.5 “ Use of Force Concept for EU-led Military Crisis ManagementOperations “ (ESDP/PESD COSDP 342 dated November 20, 2002).6 Military Committee.7 Status of forces agreement.8 Cf. Journal officiel dated 29.08.2003 (p. 14 736).9 On November 17, 2003.The legal advisor to the commander cannot deal with all these questions alone. Therefore, it must be possible for him torely on several institutional players, from the lead-nation as well as from the European Union. In this respect, theexistence of a legal service within the Council Secretary must enable the implementation of a functional legal chain withseveral levels - strategic and operational, European Union -, from the European authorities down to the theater ofoperation.The pending relief of NATO by a European force in Bosnia-Herzegovina will give another opportunity to test the smoothrunning of the politico-military structures of the S.D.E.P. Furthermore, the future European Union military operations willhave to confirm the pertinence of the legal framework concerning the military management of crises and the importanceof legal counseling during planning and conduct of operations.DOCTRINE # 04 52 SEPTEMBER 2004

freedom of speechThe Lawin Occupied TerritoriesOn January 1 st , 2004, the US armed forces reached the end of the eighth month of occupation of the Iraqi territory ...After invoking some false excuses to attack Iraq (in particular the possession of WMD), Washington finally presentedits military intervention as a war of liberation. This objective was not the only one, and it was certainly not the mainone. Consequent to “ jus ad bellum ” (law for war declaration) comes “ jus in bello ” (war law). The later will beemphasized here. In this regard, Iraq has been an occupied territory for about one year and, the longer theoccupation, the more difficult is it to comply with the 4 th Convention because the occupying forces do slow downthe normal development of the country, would it be only for being in there. This occupation has yet been agreed bythough agreed by the Security Council through resolutions number 1483 dated May 22, 2003, ratifying the coalitionprovisional Authority and number 1511 dated October 16, 2003, awarding significant esteem and representationalsupport to the interim government Council set up by the occupying forces.However we can only note the misunderstanding between the Iraqi population, persuaded to be under American orWestern supervision with their forces confined in the vacation spots of the former government, and the occupyingforces, relying on a co-opted and totally under control elite, persuaded that the most important part of their missionhas been achieved. This situation is partially understandable because the law to be applied in Iraq by now(the 4 th Geneva Convention ratified by both the opposing parties) is far from being enforced.BY MICHEF DEYRA, HEAD OF THE IAG IN THE AUVERGNE UNIVERSITY, SENIOR LECTURER AT THE LAW UNIVERSITY OF CLERMONT-FERRAND1949 the Geneva law worked out much moreaccurate rules, intending to prevent theresurgence of WW II acts of barbarism.US ARMYAfter the minimum humanity standards of the1907 4th The Hague Convention proved to betotally inefficient during both World Wars, inA territory is occupied from the time when it is defacto placed under an enemy’s authority, evenwithout recourse to force. The actual territorialcontrol of the area where civilian people areliving is the criterion. When control is ineffectivebecause of the opposing combatants, it will thenbe considered as an invaded territory wherethe rules to be applied are those of thebattlefield. A war occupation is a provisionalsituation that doesn’t lead to the disappearanceof the occupied Nation, the sovereignty of which,even affected, remains, and the government ofwhich, even in exile, has got a right to continuehostilities. After all is said, the rules set bythe international humanitarian laws are in linewith the logic of the UN Charter according towhich acquiring territories through occupation isSEPTEMBER 2004 53 DOCTRINE # 04

unlawful. Thus, war occupation does notnecessarily translate into sovereignty (Art 47 C IV).Therefore, it is necessary to sort out the issue ofpower sharing between the occupying and theoccupied Nations. The matter will be, in priority,to take the necessary steps to maintain orderand to protect the public life, and second, toprotect its population against possible arbitrarydecisions of the occupying forces.Maintenance of Public OrderThe occupying Power should maintain the lawsof the occupied State, and more particularly itscriminal laws, and the courts responsible toenforce them, unless security is at risk. If thereare militias or groups of resistance and hostilityfrom the civilian population toward the invader,security is quite likely to be jeopardized. In thiscase, the occupying Power will decree a criminallegislation to maintain order in the ruling ofthe territory, to protect property and the linesof communication of the occupying armed forcesand administration. That legislation will bepublished and will offer all conventionalguarantees, in particular the rules of nonretroactivity,of proportional sentencing, ofpetition for reprieve, of deduction of preventivedetention, and of restrictions of the deathpenalty (only in case of espionage and sabotagehaving caused death and only if the criminal lawof the occupied territory was making provisionfor such a sentence (Art. 68.2 C IV). Moreover,the detention of civilians is addressed as well.It should take place in the occupied territory,with good conditions of hygiene, food, religioussupport, and medical care. It should also keepthe prisoners in good health, with specificguarantees for women and children (art. 50 and76 G IV), and should allow visits from the ICRCdelegates limiting neither their frequency northeir duration (art. 143 G IV). The detaining ofcivilians, for pressing security reasons, obeysthe very strict rules set by the 4 th Convention(art. 79 to 141).As for militias and organized resistancemovements that are operating inside anoccupied territory, they are to be considered asprisoners of war when captured, on conditionthat they are hierarchically organized, that theywear some distinguishing feature recognizablefrom a distance, that they carry weapons openlyin combat actions and that they comply tothe war laws and custom (art. 4.2 G III).The prisoners of war (including the most famousof them, Sadam Hussein) do not benefitimmunity of proceedings for crimes that theypossibly committed, they can undergo crossexaminationwithin the strict limits set by article17 of the 3rd Geneva convention. In case ofproceedings by the holder power, any prisoner ofwar should be put to trial in the same courts andalong with the same procedures as for membersof the armed forces of the holder power. Thus,a prisoner of war detained by the US forces canbe court-marshaled along with the US criminalmilitary law with the inherent basic freedom andimpartiality guarantees.To Protect the Population against PossibleArbitrary Decisions of the Occupying ForcesThe protection of the civilian population, moreparticularly vulnerable to the actions of theoccupying forces, is provided through threedifferent mechanisms.First, respect for the basic guarantees of humanetreatment. To ensure respect for the rights of anindividual detained by one of the warring parties,murder, torture, corporal punishment, mutilation,pillage, and any other brutalities are forbidden.On the same line, foreign nationals areauthorized leaving an occupied territory unlessnational interests of the occupying power makeabsolutely necessary for them to stay. In such anevent, there could be internment or placementunder house arrest.Second, the right to live as normal as possible.Actual administrator of the territory, theoccupying forces have three obligations. Firstly,they have to facilitate a smooth running of theestablishments in charge with children care andeducation or, if the local institutions are faulty,to provide the support or the education of thosechildren (art. 50.1 C IV). Then, the occupyingforces should maintain the medical and hospitalestablishments as well as public health andhygiene. The occupying forces can deciderequisitioning on a temporary basis only andonly if the needs of the civilian population aresatisfied (art. 56 and 57 C IV). Finally, theyshould allow the ministers of religions tospiritually support their fellow believers, andthe rescue organizations to hand over individualand collective assistance at times when thepopulation does not get sufficient supplies (art.55, and 58 to 63 C IV). The occupying power hasto authorize neutral and impartial NGOs to checkthe level of supplies of the population and to leta free access to humanitarian aid. However it isin no way an excuse for the occupying forces notto feed the population.DOCTRINE # 04 54 SEPTEMBER 2004

freedom of speechThird, respect of the allegiance of the populationto the occupied Nation of which they are citizens.It is forbidden to transfer, to deport, or toestablish outside the occupied territorythe protected people, either in large numbers orindividually (art. 49 C IV), and to establishnationals of the occupying Power in the occupiedterritory. Further, hostage taking and moral andphysical coercion of civilians, in particular in viewof getting pieces of information, are prohibited.Lastly it is also forbidden to recruit children inany organization or formation coming undercontrol of the occupying forces, to force peoplehaving a job to join the occupying armed forces,to compel them to works that would force theminto military operations (art. 50 §2 and 51 C IV).Therefore, the occupying Power has to takethe necessary steps to maintain order, andthe occupied Power has to protect its populationagainst possible arbitrary decisions fromthe occupying forces. If many measures, inparticular those relating to human treatment andrespect of the allegiance of the Iraqi people toIraq, are properly applied by the occupyingforces, the current situation in this country givesrise to two series of questions.On one hand, those relating to the respect forindividual rights, of civilians or of prisoners ofwar. The measures adopted by the provisionalAuthority of the coalition and by the interimgovernment Council are giving cause for concern,more particularly in regard of the freedom ofthe judiciary power, freedom of speech and ofassociation, freedom of movement, access toinformation in the proper language andpatrimonial disputes. In this matter the adoptionof a provisional constitution on March 8 is not ofa reassuring nature, and certainly not for ...Iraqi women. Will 25,000,000 Iraqi citizensapprove what the 25 members of the interimcouncil ? Further, the access of the ICRC to someprisoners of war is not made easier whendelegates must visit all prisoners and confinedpeople, in any detention place, and benefitingdiscussions without witness. And this, as oftenas the ICRC judges it necessary. Further, ifprisoners of war can be transferred outsidethe country where they have been capturedimply that they also could be detained in theirown country. Following this hypothesis, even ifnothing specific has been set by law, it wouldbe logic to grant them the same right to familyvisits as the one granted to civilians protectedunder the 4 th convention.On the other hand, there are questions aboutpublic order. If the tyranny of the Baas party hascome to an end, is it possible to view the interimgovernment as legitimate ? Should we ignorethe problems of food, gas, electricity, andgasoline supply ? Public heath and securityproblems ? Unity of Iraq in a democratic regimewith the Kurds divided in rival groups, Sunnitsand Chiites divided in several schools of thoughtis wishful thinking. The balkanization that dividescommunities, tribes, clans, not to saythe families themselves has lead to the deathof hundred of civilians that are now deliberatelytargeted.The United States declared in February that theywould leave Iraq on June 30, 2004 and for lackof being able to organize free elections beforehand, they will leave this country with aprovisional constitution and a non-electedgovernment that is not to be “ the internationallyrecognized and representative governmentrequested ” by Resolution 1511. And it is this veryresolution that establishes the multinationalforce under an American unified command towhich the UN State members are called on toprovide some support, to include military forces.Strange paradoxes that can be solved neitherthrough “ jus ad bellum ” nor through“ jus in bello ” !US ARMYSEPTEMBER 2004 55 DOCTRINE # 04

Operation ARTEMIS :“To Provide the Commander with the NecessaryLegal Framework to Carry out his Mission ”The ARTEMIS operation begins on June 3, 2003, as a (French) national operation under the name of “ MAMBA ” ;it will become a European mission on June 16.An operation designed to preserving area and population security in the depth of Africa in an area devastated bybloody confrontations among militias with a background of ethnic conflicts, ARTEMIS has confirmed the pressingneed to provide the military commander with the necessary means for freedom of action from the outset.BY BRIGADIER GENERAL THONIER COMMANDING THE 9TH BLBMA 1The Army exercises andoperations feedback andassessment Center (CEREX -US equivalent is Center forArmy Lessons Learned), aCDES department (ArmyDoctrine and Higher MilitaryEducation Command - USequivalent is TRADOC), hasqualified this operation as“complex because of itsenvironment, perilousbecause of the forceprojection and of the opentheater, difficult inimplementing and dangerousto carry out ” adding that “the sole simplicity ofthe principles used ensuredsuccess ”. As a matter of fact,the lack of previous planning,the remoteness of Bunia, andthe lack of understanding ofthe forces involved lead tospontaneous decisions andrecourse to a simple systemof reference - mainly relyingon action. The opacity, theseriousness and the volatilityof the situation in the ITURIprovince demanded the forceto acquire an adapted legalframework. Indeed, this hadbeen done in the form ofROEs. But, on the other hand,there was nothing concerningprocedures for the treatmentof prisoners, suspects, orproven criminals.Indisputably, my freedom ofaction was facilitated to agreat extent, thanks to clearcutROEs - those of a forcecommitted to take thedecision with the use of fire asnecessary. They allowed me totake the initiative, todeliberately select offensivecourses of action that proveddissuasive. Our capacity touse our weapons advisedly,applying a strict fire disciplinewhen the ratio of forces wasnot always favorable,seriously restrained theaggressiveness and the selfconfidenceof the militias.Today, I am certain that givingthe commanders, down to thelowest level (team leaders),the possibility to make acontrolled use of theirweapons has been a keyfactor of force credibility andefficiency. The authorized andlegal use of force, beyond selfdefense,resulted during theoperations in implementingsome lessons learned andrehearse them in training.Those ROEs embodied a realdetermination to react - not toundergo hostile actions butrather to impose our will ontothe “ adversary ”. This state ofmind made up of vigilance, ofinitiative, and of reactivity hascertainly contributed indeterring the militias fromdirectly attacking the force.In that kind of engagement,right from the start of themission, the COMANFOR 2should receive ROEs thatprovide him with a legalframework adapted to apossible use of the fullspectrum of available militarymeans. This was the case forARTEMIS. This capacity to useall weapons, to includeoffensive air, without havingto request prior permissionfrom the OperationCommander, was most likelydecisive in this operation.An operation in which theapproach of the reality andthe understanding of thecurrent situation demandedswift and adapted responsesthat only the forwardcommander can properlyassess. Additionally, it is thehigh quality of the menselected for this operation.Experience of the Africantheaters, total professionalismin execution, and fullcollective motivation enabledme to make risky tactical andlogistical decisions that onlyunited and cohesive unitscould carry out. It is of no useindeed to have robust ROEs, ifthe commanding officercannot or does not daredelegating because of lack ofexperience, or simply becausehe is not familiar enough withthe commanded troops. If alegal framework is absolutelynecessary indeed, as long as itdoes not add constraints thatreduce the commander’sinitiative, with the associatedrisk of making him vulnerable,DOCTRINE # 04 56 SEPTEMBER 2004

lessons learnedit is as much necessary, not tosay essential, to be in aposition to provide eachcommand level with theproper initiative. Thiscapability is only possible ifcommanders know each otheras well as they are familiarwith their subordinates. In myview, it is certain thatcohesion of the basic tacticalunits, mutual respect andconfidence, and of courseexpertise of junior leaders areelements, even though notquantifiable, that allow one toface with less stress “ nonconventional” situations.So, the lack of administrativestructures in ITURI, inparticular no police and nolegal system, obliged us todevelop detailed standardoperating proceduresconcerning proven criminals,looters, and others arrestedon the scene or concerningsimply militiamen capturedduring contacts - as thecommitted force had beengiven no mandate to carry outpolice actions. That legalvacuum could render a forceless credible. It turned to bequite a handicap from the firstcontacts, as well as duringthe Bunia securitystabilization phase. However,the accepted principles wereto systematically arrest, byforce, and by the use of ourweapons, when necessary,anyone committing criminaloffense or showing any hostileintent towards anybody... inaccordance with the ROEs.Weapons were seized anddestroyed. The accused weresubmitted to a very detailedinterrogation, in the presenceof provost marshals, then theywere released without furtherado... This attitudedemonstrated our will not toundergo hostile actions, andwe contributed in lowering theinterethnic violence level orthe mere delinquency level.On the other hand, we have toadmit that with regard torepeated offenders, it was notthat dissuasive - and more sowith regard to the militiamen.Paradoxically, the handling ofthe “ enlisted children ” issuewas rewarding because it waspossible to hand over thosearrested and disarmedchildren to UN bodies or toNGOs. However, it is worthnoting that the saturation limitof their capacities appeared tohave been reached.In this situation, my otherconcern was to provideprotection to my men byreducing the visibility of legalvulnerability. I removed anydoubt by issuing clear orders,and systematically calling forthe provost marshals.The men perceived theirparticipation as a guarantee.Their legal status as lawenforcement officersestablished the truth ofevidence in face of any illintentioned informer or of anynational jurisdiction. However,provost marshals should beplaced under the command ofthe force commander whoshould be the only one tosettle priorities for their useaccording to the currentoperational situation, and bygiving them the necessarymeans to carry out theirmission. Bunia was a case inpoint. They took part inthe planning process and theywere used, on my request, inall firing incidents or anyarrest of militiamen, criminals,and delinquents. Theirpresence, together with their“ gendarme ” status, hassignificantly increasedthe effectiveness of thewarnings given to localpotentates, i.e. the threat ofbringing them before theInternational Criminal Court.Nevertheless, the presence ofa provost marshal detachmentis no excuse for notestablishing proceduresconcerning the treatment ofprisoners, suspects, or provencriminals. Those proceduresshould be adapted to the legalconditions in whichthe committed force is. Thismatter has to be considered indetails because out of areaoperations are increasinglybound to take place in a legalvacuum.1 Translator’s note : marine lightarmored brigade.2 Translator’s note : Forcecommander.CCH J.J. CHATARD/SIRPA TerreSEPTEMBER 2004 57 DOCTRINE # 04

The Legal Environment of Land Forcesin the Republic of the Ivory CoastOn 19 September 2002, rebels conducted simultaneous attacks against military and political objectives in Korhogo(in the North), Bouaké (centre) and Abidjan, the Ivory Coast economic capital. The coup attempt failed in Abidjan.But, as a result, the north of the country fell under the rebels’ control. Since that day, the Ivory Coast is, de facto, dividedinto two areas : the northern area under the rebels’ full control, and the southern area under the regular armedforces’ control.The French land forces legal environment in the Ivory Coast is very complex since two types of forces coexist; on theone hand, those permanent forces based in the Ivory Coast in accordance with the agreement signed by the IvoryCoast and France on 24 April 1961 ; on the other hand, the force of operation LICORNE, whose initial intervention,taking place within the framework of an operation intended to protect French citizens, found its legal basis within acustomary framework before receiving new missions requested by the warring factions. It eventually fell under aUnited Nations Security Council Resolution legal framework. After reminding how the missions framework had evolved,it will be interesting to observe the legal basis that protect French forces during their deployment in the IvoryCoast.BY LIEUTENANT (A) STÉPHANIE NICOL*(LEGAL DIRECTORATE REPRESENTATIVE)Protection of FrenchCitizensWhen what was perceived tobe almost a civil war, thepermanent French forces inthe Ivory Coast 1 wereimmediately activated. Thepriority was to generate aforce capable of providingsecurity to foreigners withinthe combat zones thatextended up to the north ofthe country. This was thereason for the deployment ofFrench forces to reinforce the43 BIMA on the 22ndSeptember 2002. In additionto the protection of Frenchand other foreigners, theFrench soldiers had to ensurethe protection of the facilitiesand assets that would allowthe evacuation of those Frenchand foreigners at any time andunder the best possibleconditions. That evacuationoperation conducted over theentire Ivory Coast territorybegan on the 26th ofSeptember 2002 and wascalled operation “ LICORNE ”.France’s decision to reinforceits deployment in the IvoryCoast constitutes an exampleof what is called“ humanitarian intervention ”,i.e. the deployment of armedforces to a foreign country’sterritory in order to extractfrom a failing government orrebellious warring factions’control, our own citizens whenthey are threatened of severehuman rights violations.This humanitarian interventionconcept is part of customarylaw ; the United NationsCharter has neveracknowledged it. Its legalityhas not been explicitlyaccepted by the InternationalCourt of Justicejurisprudence 2 . However, ithas become a practicetolerated by the InternationalCommunity. In its 23 October1924 decision, concerningBritish possessions in SpanishMorocco, Max Huber,President of the ICJ states that“ at a certain point it becomesunquestionable that a State’sinterest to protect its owncitizens and their possessionsmust prevail over the respectof sovereignty, even if noconventional obligation exists.The right to intervene hasbeen claimed by all states,only the limits to that right canbe discussed ”.Humanitarian interventionmust respect certainADC F. CHESNEAU/SIRPA TerreDOCTRINE # 04 58 SEPTEMBER 2004

lessons learnedprinciples. It must berestricted to non-combatantevacuation without anydiscrimination 3 and must bestrictly limited in time. Andlast, as stated by Mr.Dominique de Villepin (FrenchMinister of Foreign Affairs), itmust not become an excusefor mingling into a sovereignstate’s internal affairs 4 .Besides, the Licorne forceskept their actions within astrict framework in order toavoid that the Internationalcommunity could question itslegality.When the conflict began tolengthen, France, at therequest of the parties, becameinvolved as a mediator, butwithout having to implementany of the defenseagreements. The Licorne forcelegal environment was shapedby the events that took placeduring the peace process andgenerated severalagreements amongst theparties.France’s Involvement inthe Ivory Coast CrisisSettlementThe Cease Fire Agreement(17 October 2002)Following a series of Frenchsupported negotiations,undertaken under the aegisof the Economic Communityof Western African States(ECOWAS), a cease-fireagreement was signed on the17 th October of 2002 bygovernment and rebelsrepresentatives. At therequest of Laurent Gbagbo,the President of the IvoryCoast, and with the“ agreement ” of the othersignatories (the rebels),French authorities assignedto Operation Licorne themission of observing ceasefirecompliance - in additionto ensuring foreignerssecurity.The observer mission was tobe only temporary whilewaiting for the deployment ofan ECOWAS force. 5 As aconsequence, the Licorneforce had to carry out by itselfthat delicate mission. Only inJanuary 2003, when ECOWASforces arrived, were theactions coordinated betweenboth forces - also known as“ impartial forces ”.As the situation worsened andthe cease-fire agreement gotregularly violated, Franceoffered to act as anintermediary and organized ameeting with all parties inorder to find a solution tothe crisis.The Linas MarcoussisAgreement (24 January 2003)On 24 January 2003, the LinasMarcoussis conference,initiated by the Frenchgovernment, gathered allpolitical parties representedat the National Assembly,the Rassemblement desRépublicains (the Republicanparty) and the politicalrepresentatives of the rebels :Mouvement pour la justice etpour la paix (MJP),Mouvement populaire ivoiriendu grand Ouest (MPIGO),Mouvement patriotique deCôte d’Ivoire (MPCI - PatrioticMovement of the Ivory Coast).All parties signed theagreement, but the Presidentdidn’t ratify it.This reconciliation agreementincluded, inter alia,the creation of a nationalSEPTEMBER 2004 59 DOCTRINE # 04

econciliation government aswell as keeping PresidentLaurent Gbagbo as the Headof State. However, the Linas-Marcoussis agreement was apurely Ivorian agreement.The resolutions involvingeither the French forces orthe French government hadbeen drafted as being onlypossibilities (§ 3f), ordepending on an Ivorianrequest (§ 3 and §5 and § VII,points 1 and 2 of the annex).The Linas-Marcoussis textwas only a formal invitationto deploy the forcesnecessary to ensure thesecurity of the personshaving participated inthe meeting and, if necessary,the security of the membersof the forthcoming nationalreconciliation government.That invitation was made onbehalf of the meeting and noton behalf of the Ivoriangovernment. In spite of a verychaotic situation, the IvoryCoast remained however asovereign country with alegally elected presidentwhose approval wasnecessary to implementthe agreement. It is only onthe 25 th January of 2003,during an African Heads ofSates summit in Paris, thatPresident Laurent Gbagboaccepted formallythe reconciliation agreement.The international communityexpressed its support tothe Linas-Marcoussisagreement implementation.In order to extend thisinitiative, the UNSC adoptedon the 4 February 2003resolution 1464 giving a newdimension to the Licorneforce legal environment.UNSCR 1464By adopting that decision,the Security Council endorsedthe Linas Marcoussisagreement. It endorsed aswell the presence of Frenchand ECOWAS forces inthe Ivory Coast withthe mission of preventing anynew confrontation onthe cease-fire line and toparticipate in ensuringthe security of the oppositionministers until the Ivoriangovernment was able to do soand until conditions wereestablished to implement anational program fordemobilization, disarmamentand reinsertion (DDR).And, in accordance withthe dispositions included inpoint 14 of the conclusions ofthe conference of AfricanHeads of States held in Paris25-26 January 2003, rightafter the Linas Marcoussisagreement, paragraph 9 ofthe resolution authorizes,under Chapter VII 6 ofthe Charter, “ member statesparticipating in ECOWASforce, in accordance withChapter VIII 7 , as well asFrench forces supportingthem, to take all necessarymeasures to ensure securityand freedom of circulation fortheir personnel and, withoutprejudice to the nationalreconciliation government’sresponsibilities, to ensurethe protection ofthe civilian when they arethreatened with physicalviolence within their zones ofoperations and within meansand capabilities.... ” 8In addition, UNSCR 1464recalls some of the basicprinciples of international lawused as a framework forcarrying out the mission,among which principles,the respect of the Ivoriangovernment’s sovereignty andnon-intervention into itsinternal affairs. Actually, thisimplies that the primaryresponsibility for restoringpeace rests with the Ivoriangovernment, “ impartialforces ” intervening only insupport of the nationalreconciliation government.UNSCR 1528(27 February 2004)Facing an upcoming andimportant presidentialelection in 2005, and asituation difficult to stabilize,the international communitydecided 9 to send a UNOperation to the Ivory Coast.For French forces, thisevolution consisted in anevolution of the missionssince they would beessentially carried out insupport of UNCI but most oftheir legal environmentremaining unchanged 10 .French Status of ForcesAgreement (SOFA) onIvorian territoryThe SOFA states whichtribunals are competent forthe military units deployedon a given foreign territory.In that case, it has not beennecessary to negotiate aSOFA in the Ivory Coast.Actually, an agreementalready existed for technicalassistance, dated24 April 1961 (Annex 1established the status ofthe French armed forces inthe Ivory Coast).Articles 1 and2 state that Frenchjurisdictions are competentwhen a member of Frencharmed forces is suspectedof a violation committedwithin French armed forcesfacilities. They are competentas well if a common lawinfraction has beencommitted outside of thesefacilities if the perpetratorwas on duty.In any other case, Ivoriantribunals are competent 11 .Consequently, in some cases,that agreement provides forjurisdictional immunity infront of Ivorian tribunals.Of course, this doesn’t meanimpunity since any militaryperpetrator will have toanswer French jurisdictionsfor what he/she has done 12 .Nowadays, there are manytheaters of operations whereFrench forces couldintervene.These missions’legal frameworks are alldifferent and can be verycomplex, as was the caseduring the Kosovo mission.Today, the usefulness ofproviding the Forcecommander with a legaladvisor (LEGAD), just like inthe Ivory Coast, isrecognized. LEGAD’s missionis to provide the commanderwith advice and not torestrict the forces’ action inthe field. In addition, a justand enlightened vision ofthe operation legalframework should enablethe commander to issue clearorders and thus ensurethe operation’s success.DOCTRINE # 04 60 SEPTEMBER 2004

lessons learnedCCH J.J. CHATARD/SIRPA Terre* Lieutenant Nicol is a staff officerat the legal affairs directorate(armed conflict law bureau). Sheacted as a legal advisor for KFORand LICORNE operationcommander.1 French forces in Ivory Coastconsist in : the 43rd MarineInfantry Battalion (43 BIMA), asignal detachment, a defenseprotection detachment, amilitary police detachment, anaerial military transportdetachment and a groundsupport detachment.2 Ref. 24 May 1980 ICJ decisionabout “ diplomatic and consularpersonnel of the US Embassy inTeheran ” The Court didn’t thinkit had to decide on the legalityof humanitarian interventions.3 Ref the ICJ decision (27 June1986) about military andparamilitary activities inNicaragua : “ according to theCourt, in order to avoid being acondemnable intervention intosovereign state’s affairs,humanitarian assistance must,not only be restricted to the RedCross established goals (humansuffering prevention andalleviation, life, health andhuman being respect andprotection) but this assistancemust also be delivered withoutany discrimination to anyperson needing it.... ”4 Senate press communiqué(4 October 2002) “ ...within thatcontext, Mr. Dominique deVillepin has explained what arethe French priorities: ensureFrench citizen’s security (whichhas caused the reinforcement ofour forces to reach a level of900), maintain country’s unityand regional stability, not to getinto these countries’ internalaffairs, support to Africanmediation ”.5 The build up an ECOWAS forcefor the Ivory Coast has beendecided during the Accrasummit on the 29 th of June 2002.That interposition force’s finalgoal was to relieve French forcescurrently deployed in the IvoryCoast for the Licorne operation.6 Chapter VII of the Charterenables the SC to imposecoercion measures to thevarious parties of a conflict.Under this chapter, it canauthorize the multinational forceto make use of force in order tocarry out its mission. Thesentence “ all necessary means ”frequently used by the SCincludes the use of force.7 Chapter VIII of the Charterenables regional organizationssuch as ECOWAS to interveneand implement coercionmeasures with the SCauthorization.8 French forces and ECOWASmandate has been renewed byUNSCRs 1498 (4 August 2003)and 1527 (4 February 2004)9 UNSCR 1528 (27 February 2004)“ acting under Chapter VII ofthe UN Charter, decides tocreate the UN Operation in Côted’Ivoire for a period of12 months, starting on the 4 thof April 2004 ”.10 Paragraph 16 of the UNSCR “authorizes French forces for aperiod of 12 months, starting4 th of April 2004, to make use ofall necessary means to supportUNOCI, in accordance with theagreement that must be signedby UNOCI and Frenchauthorities and, in particularto :- contribute to the overallsecurity of the internationalforces in the zone ofactivities,- intervene, at the UNOCIrequest, to support UNOCIelements whose securitymight be threatened,- intervene in case ofbelligerent activities, shouldthe security conditionsrequire, outside of the areasthat are under UNOCI directcontrol,- assist and protect thecivilians in their unitsdeployment areas.11 However, French governmentcan ask Ivorian authorities torenounce to their rights, theycan of course refuse.12 In that case, the Military Courtin Paris.SEPTEMBER 2004 61 DOCTRINE # 04

The Meandersof the International Criminal JusticeThe present article has no other ambition to draw some lessons learned from a judicial-operational experiencein a multinational environment. It must be placed back in the cooperation context of that period betweenthe International Criminal Tribunal for the formerYugoslavia (ICTY) and the Stabilization Force (SFOR). As it is known,this context has considerably evolved in the following years in order to enable the indictment and the conviction of alarger number of persons indicted for war crimes. Straight off, it is acceptable to say that the strict respect of the legalframework of the SFOR-ICTY cooperation is a guarantee of success.To plead the case, following the description of the general framework of that mission, some lessons learned will beproposed regarding a six-month experience in the theater.BY LIEUTENANT-COLONEL PHILIPPE PETREL, FROM THE CDES/CSEM 1 STUDIES DEPARTMENTTHE GENERAL FRAMEWORKUNDERSTANDING THE ICTY IN ORDER TOUNDERSTAND THE MISSION FRAMEWORKThe general framework wascreated by resolution 827 ofthe Security Council on May25 1993 to judge the personspresumed to be responsible ofserious violations of theinternational humanitarian lawcommitted on the territory ofthe former Yugoslaviabetween January 1 1991, and adate to be determined whenpeace is restored. It has notbeen fixed yet, which explainsthat the Tribunal is stillcompetent for crimescommitted in Kosovo.After a difficult or even chaoticstart, due on one part tothe procedural system itchose, and on another part, tothe unwillingness tocooperate of the states,the ICTY asserted itself as anessential element of thesettlement of conflicts inthe former Yugoslavia.Another strong characteristicmust be noted - its Anglo-Saxon procedure. At that time,the ICTY is suffering fromthe difficulty in adjusting itsprocedure strongly inspired bythe Anglo-Saxon law(the common law). Indeed,the latter leads to endlessquestioning and crossexaminationof the witnesses.Thus, the duration of somecriminal trials can reach up toeighteen months such as inthe Croatian General TihomirBlaskic’s case.ADC F. CHESNEAU/SIRPA TerreGenerally speaking, the aim ofthe ICTY investigations inBosnia-Herzegovina is tocollect the maximum ofinformations and evidences onthe sites likely to contain opengraves ; to hold the inquiriesand to perform theexhumations of these opengraves to gather evidenceDOCTRINE # 04 62 SEPTEMBER 2004

lessons learnedabout these war crimes ; tostudy and to copy anyavailable document linked tothese matters ; to hearwitnesses and victims ; finallyto audition the personsindicted for war crimes.How is the NATO SFOR actionin keeping with thisframework ? Exclusively in aregular and legal frameworkderived from the resolutionsof the Security Council andfrom the Dayton agreements 2(General FrameworkAgreement for Peace - GFAP).The agreement signed bythe ICTY and SHAPE -The Memorandum ofUnderstanding - in March 96,constitutes the referencedocument for everythingpertaining to the support thatSFOR can provide to theHague Tribunal. It is thentranslated in very detailledstanding operationprocedures (SOPs) forthe Force (units deployed inthe field; liaison officers...) :3 407 for the investigations asa general rule and 3 409 forthe persons indicted for warcrimes.Concretely, as early as January1996, this is expressed bythe provision of additionnalinformations about the zone inquestion; liaison teams and asafe environment ensured bypatrols around the enquirylocation; accomodation andcatering possibility with SFORunits and medical evacuationin case of emergency. FromApril 1996 on, SFOR ensuresreconnaissance flights as wellas a reinforced air and groundsurveillance of the sitesknown to be the mostsensitive ones.THE LIAISON OFFICER’S MISSIONInserted withinthe coordination cell ofthe SFOR operation office,the liaison officer to the ICTY(LO-ICTY) is also an integralpart of the Joint OperationCenter (JOC) where heperforms other functions. Hismission can be resumed asfollows :• Relations with the ICTYoffice in Sarajevo and itschargé de mission.• Relations within the SFORstaff : the LO-ICTY is also intouch with the legaladvisor’s office (LEGAD) forthe legal control of thesupport provided by SFOR;with G2 for the assessmentof the potential threatagainst the enquiry area...• Relations with thesubordinate units : in hisdomain, he is responsiblefor the drafting and updatingof the SOPs and of theFRAGOs (fragmentaryorders) to the divisions.ALL THE WORK ACTIONS AREIMPREGNATED WITH THE NATO CULTURELike all the officers insertedin NATO staffs, his workingframework is characterizedby :• Numerous ComputersWorking in Nets.The secured electroniccommunication system(CRONOS) is omnipresentand permits to rapidly sendto SHAPE, to a division, to astaff officer in the next officeprepared document ormessage forms. So, everyMonday, the LO-ICTY sendsdirectly to the SHAPE JOCthe weekly report aboutthe support provided tothe ICTY (Weekly report ofSFOR support to the ICTY).Besides, this net enableshim to send FRAGOs - in realtime- to differentsubordinate unitssometimes penalized bythe lack of anticipation ofthe ICTY.THE SCUFFLE FOR DELAYS ORTHE IMPORTANCE OF FILTERS• Any document with anexternal value or consideredas an order passes throughnumerous filters :the coordination cellcommander, the ops centercommander, the legal oreven the political advisor,the PR officer... theDCOSOPS. By the way, let usnote the key place held bythe LEGAD. In the Anglo-Saxon sense, he is in chargeof ensuring a strong judicialbasis to the operationaldecisions taken upstream.In other words, he willsearch the specific rules ofthe operation ( rules ofengagement and rules ofbehavior which are inthe OPLAN and SUPLAN) forthe justification of the actionof the force. Given thepolitical-media sensitivity ofthe matters this control,a priori, may go as far assending the document tothe SACEUR legal advisor’soffice to be approved.WHAT CAN WE DEDUCE FOR THE ICTY ?• As the privilegedinterlocutor of the ICTY, hemust be able to speak in lieuof the DCOSOPS, andanswer, while respectingthe letter and the spirit ofthe legal regulations, tothe numerous requests fromhis correspondants inthe ICTY Sarajevo. He istherefore requested to mixtwo qualities : firmness andjudgement.• As the first drafter ofthe letters sent tothe Tribunal in The Hague hemust know how to masterthe language and shades ofmeaning indispensable tothe writing of a diplomaticletter.• Finally, he must be able topresent a synthesis situationreport to the SFOR G3 (COSOperations) in order tofacilitate rapid decisionmakingon subjects that aresensitive from a politicalmilitarypoint of view. As acomparison, the bestexample that can be quotedis the presentation ofsynthesis slides by CPCOstaff officers.LESSONS LEARNEDAs the general framework hasbeen described, which majorlessons can we learn ? Threemajor groups are evident : theinfluence of foreign policy onthis sensitive subject, themedia pressure, and the strictrespect of the legalframework.• Foreign Policy Influence :So, as early as the beginningof 1997, the tribunal isexerting a strong pressure tobring the peace maintainingforces to track the warcriminals. The prosecutor ofthat time, Mme LouiseHarbour, makes a statement inthat direction in order to beable to convict 74 personsindicted for war crimes. It iswhen the case of the Croatiangeneral Tihomir Blaskic isdebated, and for whom theCroatian authorities initiallyrefuse to provide the smallestevidence to the ICTY.Concretely, that political-legalpressure demands that theactors in the field - LO-ICTY,LEGAD...- show perseveranceand, let us say it, firmness notto give into the sound boxeffect.• Media pressure. Concerningthe pertinence of theinformations released by theAFP (Agence France Presse).What is really this all about ?On December 26 th 1996, theliaison officer receives aninformation from a French PRofficer. Reported by the AFP, itsays that soldiers would havedenied to a Bosnianexhumation committee teamthe possibility to keepworking on the Kladanj area(North-East of Bosnia-Herzegovina and sector ofresponsibility ofSEPTEMBER 2004 63 DOCTRINE # 04

ADC F. CHESNEAU/SIRPA Terrethe Multinational DivisionNorth MND-N) in which120 persons killed in July1995 might have been buried.In the same report it is saidthat the president of thatsame committee requeststhe SFOR Commander in chiefto withdraw his soldiers sothat the committee be ableto keep working. The LO-ICTYimmediately reports tothe G3 coordination cellcommander after checkingthe information withthe MND-N as well as withthe theater intelligencesources or the national ones(the famous NationalIntelligence Cells). Nobodyseems to be aware and noreport has been forwarded upto the Division commander.Despite the reservations ofthe LO-ICTY and of the FrenchPR officer it is decided torelease an official denial.The next day the DMN-N dutyofficer reports via CRONOSthat something effectivelytook place : an Americanmilitary police team had notfound necessary to report.The consequence of thismistake : the SFOR PR officermust make amends duringthe usual evening Presspoint. What lesson can welearn ? That the Anglo-Saxonreporting procedures are sostrict that if nothing shows indue time it is considered thatnothing happened. One mustbe convinced that, in thisdomain, there is only littleroom for French good sense.Strict Respect of the LegalFramework : the mandate,the whole mandate, only butthe mandate. Here liesthe importance of theaccuracy and of theexhaustiveness of theparagraphs - coordinatingmeasures and legal aspects -in the Fragos given to thesubordinates units. Eachsentence has its importance :“ The Stabilization force willprovide a safe environmentas well as the freedom ofmovement to the ICTYinquiries ”. On the other handit is emphasized that“ the SFOR units are notobliged to provide directescorts or to guard siteswhich are underinvestigation ”.A precise example willillustrate the validity of theserules. During an investigationperformed in the BosanskiSamak area (North-Eastsector and responsibility areaof the DMN-N under Americancommand) in mid-December1996, one of the employeesof the ICTY Sarajevo calls meto indicate that the Americanofficer in charge ofaccompanying the ICTY teamdoes not provide the samelevel of security. Afterchecking in the field, itactually appears that one ofthe female inspectors tookthe initiative to request tobe escorted inside premises.This is beyond the legalframework of the mandate.In Sarajevo, after a thoroughcontrol of the exact wordingof the Frago and SOPs bythe LEGAD, it is demonstratedthat the force is strictly in itsrights. In parallel, a Presspoint is prepared, and a letteris sent that same day toM Hendrick, the chief ofthe investigators inThe Hague, with a copy tothe SHAPE LEGAD’s office inorder to definitely defuse therumor. What lessons can welearn a posteriori ?The importance to establishrelations based on confidencewith those who hold the Law,among whom the LEGAD.Directly integrated inthe operational loop, his legalcontrol a priori is a necessaryand sufficient life insurancefor the units which areexecuting these same ordersand a fortiori for the LO-ICTY.DOCTRINE # 04 64 SEPTEMBER 2004

lessons learnedICTY TASKING PROCEDURES(INVESTIGATIVE SUPPORT)MOUYCTYTHE OFFICE OF THE PROSECUTORICTY OFFICEZAGHREB/SARAJEVOSHAPEINVESTIGATION SECTIONPOLICYPC SFORINFOREQUEST FORINVESTIGATIVESUPPORTCAOCPOLICY GUIDANCECURRENT REPORTSHQ SFORCJ3 OPSINFOINVESTIGATIVECURRENTCJ2CCIRMSUPPORTMISSION ORDERREPORTSAERIALPLATFORMSPRELIMINARYINFORMATIONMNDSICTYGROUND TEAMSEPTEMBER 2004 65 DOCTRINE # 04

Another special case can bequoted when in March 1997,an ICTY team investigating inthe Prijedor and Banja Lukaarea (sector West andresponsibility area ofthe DMN-SO - under Britishcommand) wants to questionpersons not appearing onthe poster showingthe persons indicted for warcrimes. A new reiterationby the LO-ICTY and the LEGADrestores things in conformitywith the reality. So, itconfirms the Force in its rightas regards legality. How isthat ? According to theagreement (Memorandumof Understanding) signedby the ICTY and SHAPE onMay 9 th 1996 “ it is agreedthat the SFOR personnelcould detain persons indictedfor war crimes by relying onthe warrants of arrestaccompanied with thecorresponding bills ofindictment and all additionalinformation providedby the tribunal. These samedocuments must beforwarded to the SACEURLEGAD’s office by theprosecutor’s office inThe Hague which itselfforwards them to the ForceLEGAD’s office. Finally,the latter is in charge ofdispatching these sameinformations tothe subordinate units throughthe poster of the indictedpersons or any other meanshe judges ad hoc ”. It is evenemphasized further “ thatthere is no precise clausepermitting the ICTY teams toindict persons directly inthe field. SFOR units mustclearly specify that they donot accept orders but frommilitary leaders and not fromthe tribunal ”. To make itshort, once again, the strictapplication of the legal rulesaccepted by the two partiesallowed the force toremain stricto sensu inthe framework of its mandate.1 NATO SFOR Liaison Officer tothe International CriminalTribunal for the formerYugoslavia (ICTY),lieutenant-colonel PETRELcarried out a LANDCENTreinforcement mission in BosniaHerzegovina from November 1 st96 to March 27 97.2 Signed on December 14 th 1995,the Dayton agreements put anend to the war in Bosnia-Herzegovina by establishingthe division of the country intwo entities while planningthe implementation of commoninstitutions.Finally, it is truly the rigourous application of the legal framework which enables a newcomer in matters ofinternational criminal justice to fulfill his mission in the letter and spirit. It remains that the most concretegoal of this article is to learn some lessons from an assignment in an international environment in order forthose who want to individually prepare themselves for similar responsibilities to have concrete examplesat their disposal. Inserted in the RETEX (US equivalent is CALL) data base, they might then facilitate theunderstanding of seemingly complicated missions in the long-term.DOCTRINE # 04 66 SEPTEMBER 2004

(The Legal Environment for Ground Forces : the Pictures )The Commander’s IndispensableFreedom of Action - p. 5CCH J.J. CHATARD/SIRPA TerreIs there a Law of Warfare - p. 10CCH J.J. CHATARD/SIRPA TerreStabilization and RebuildingOperations - p. 38ADJ J.R. DRAHI/SIRPA TerreThe Law in Occupied Territories - p. 53US ARMY

DOCTRINEC.D.E.FCenter for ForceEmployment Doctrine