OPLAW and Occupation Law

OPERATIONAL LAW (OPLAW) AND OCCUPATION LAW
"Wars begin when you will, but do not end when you please" (Niccolo Machiavelli)

OPLAW ("Operational Law") in the broadest sense of the term is that body of domestic, foreign, and international law which bears on the conduct of military operations, not only regular war and all of armed conflict, but particularly operations other than war, such as peacekeeping, stabilization, regime change, nation rebuilding, armed humanitarian intervention, and "Phase IV" (Cordesman 2003) counterinsurgency operations. The paradigm example is an Operation Other Than War (OOTW), which is sometimes referred to by the term "small war," defined by the US Marine Corps 1940 Small Wars Manual [see 2003 draft reprint] as "operations undertaken under executive authority, wherein military force is combined with diplomatic pressure in the internal or external affairs of another state whose government is unstable, inadequate, or unsatisfactory for the preservation of life and of such interests as are determined by the foreign policy of our nation." OPLAW is intimately involved in nation building or rebuilding efforts (like in Afghanistan and Iraq). It is a rapidly emerging field.

OPLAW touches on every aspect of core military legal disciplines and serves as the foundation for legal advice given to commanders in the field. It is a field most frequented by government and military lawyers, but OPLAW has many facets, and will (or should) find wider recognition in the academic civilian world. Some background on military law is necessary. Most military lawyers are organized into SJA (Staff Judge Advocate) offices associated with every major Brigade level command post in the U.S. (pretty much every military installation), and OPLAW support is also heavily present at every joint and multinational headquarters. OPLAW support can also be frequently found at the battalion level and in specialized units or operational cells. OPLAW attorneys provide advice and assistance to commanders on a full range of legal issues that may arise on the battlefield and/or while on foreign soil, and much of this advice is prepared beforehand in the form of tactics, techniques, and procedures (called TTPs in the services).

OPLAW attorneys also advise and assist in developing training programs for rules of engagement, targeting, and the law of war. OPLAW attorneys also frequently function as Observer-Controllers (OCs) during combat training exercises. There are many things that OPLAW attorneys do, and there are many legal disciplines which make up the OPLAW area of expertise, such as military justice, international law, administrative law, civil law, civil claims for property damage, and legal advice and assistance.

Areas and subareas are currently emerging, as OPLAW itself is emerging, especially in the Air Force and other branches of the military fairly new to it, although each military service might be said to have somewhat expanded practices and principles, and it might also be said the military has relied on lawyers ever since 1775 with the Second Continental Congress. In its current form, however, the Army has been at it awhile, at least since 1983 Operation Urgent Fury in Grenada, and before that, as Graham (2005) points out with the 1968 My Lai Massacre in Vietnam. Other cases make for significant case studies: 1989 Operation Just Cause in Panama; 1991 Operation Desert Storm in Iraq; and NATO's 1999 Operation Allied Force in Kosovo. A study of these cases alone goes a long way towards understanding how OPLAW has evolved from a simple matter of interpreting the Rules of Engagement (ROE) to the primary matters of such things as the Law of Armed Conflict (LOAC), occupation law (the legal status of occupied territory) and fiscal law (how U.S. money is spent on nation rebuilding projects). Currently, the Army and U.S. Marine Corps versions of OPLAW are essentially the same in focusing on the same primary matters. The Air Force version of OPLAW is wider-ranging, including pre-deployment services (to individual clients), specialized host nation issues, information operations, contracting issues, composite force relationship issues, and environmental law. The Navy version of OPLAW is also wider-ranging, including maritime, environmental, and space law, information operations, national security law, homeland security issues, counternarcotics, and arms control. It goes without saying that whichever military service one chooses to focus on, OPLAW is extensively involved in terrorism and counterterrorism. This lecture begins by reviewing Graham's (2005) examination of the evolution and practice of OPLAW (perhaps the best overview published), and proceed to an in-depth analysis of topics like occupation law and nation rebuilding.

Chapter 7 of the Moore & Turner (2005) textbook, National Security Law, 2e contains Graham's (2005) synopsis which is organized into four sections: a section on the evolution of OPLAW from its origins in Vietnam; a section on the legal framework and practice of OPLAW; a section on the actual practice of OPLAW; and a final section on OPLAW training. It seems practical to base our review on those section headings, as follows:

Evolution of OPLAW -- The first judge advocates (military lawyers) were assigned to Vietnam starting in 1959 to perform three (3) tasks: administer the military justice system; advise on administrative and civil issues; and provide assistance to soldiers with personal legal problems. They soon became additionally tasked with a fourth (4th) duty of enhancing mission success by integrating their legal support into contingency-based operations at all levels of command, at a rather high level of OPTEMPO (Operational Tempo). In other words, the changing face of warfare brought about the active involvement of military law into more areas than courts-martial. Lawyers were needed who understood how Rules of Engagement (ROE), civil-military relations, and certain US fiscal and environmental laws might enhance or restrict the planning and execution of operations like peacekeeping, humanitarian assistance, and quelling civil disturbances. Graham (2005) is to be credited with a good job of describing "modern" OPLAW, although people who are more history-oriented might finding going back a bit further to be enlightening.

The My Lai Massacre of 1968 (where American troops massacred between 400 and 500 Vietnamese peasants and Viet Cong guerrillas) resulted in a legal inquiry (the Peers Inquiry) which recommended that charges be brought against 28 officers and two non-commissioned officers involved in the concealment of the massacre. However, Army lawyers decided only 14 officers should be charged. Only one came to court, and he was acquitted. Next, the Army went after the enlisted men involved with enough evidence to charge 30 soldiers with major crimes, but 17 had left the army and charges against them were quietly dropped. Elsewhere charges were dismissed or the accused found not guilty, with the singular exception of a Lt. Calley, who was sentenced to life with hard labor but paroled in 1974. LOW (Law of War) training was determined to be in need of upgrading so that soldiers would receive more instruction on the Hague and Geneva Conventions. The DOD (Dept. of Defense) also created a DOD Law of War Program in 1974 which required military lawyers to review each and all of the OPLANS (Operation Plans) and OPORDS (Operations Orders, or the way a plan is presented in a briefing) for compliance with LOW. Graham (2005) doesn't go into the societal impact of My Lai, but instead focuses on the DOD Law of War Program as more significant, a direction others might dispute given the central importance of My Lai on American history.

Operation Urgent Fury (Grenada) in 1983 was the first major OPLAN reviewed and supported by military lawyers. Not only was it a fairly carefully-crafted peacekeeping operation given the time limitations, it set precedent on the taking of war trophies, the treatment of captives, and the paying of claims for damaged and seized property. The government of Grenada was also assisted with the reformulation of domestic law. Improved synchronization took place between US organizations and non-US organizations on peacekeeping and humanitarian aspects of the operation. By 1986, the Judge Advocate General's Legal Center and School began developing a curriculum on OPLAW, and soon symposiums and handbooks appeared (most documents winding up on secure JAGNET websites). Since then, computer and satellite technology have helped link a variety of personnel, including military lawyers, advocates, warrant officers, paralegal specialists, and civilians to operational roles in Somalia, Rwanda, Haiti, Bosnia-Herzegovina, Albania, and Kosovo. OPLAW personnel are present wherever the military is, responding to threats in the Middle East or Northwest Asia, providing humanitarian relief in Africa, or nation building in the Caribbean, Latin America, and Eastern Europe. Graham (2005) doesn't really make much of the distance education technology used, or any technology issues for that matter. It could be argued technology was the force multiplier which made the practice of OPLAW what it is today.

Legal Framework of OPLAW -- Three major areas encompass all the legal services provided that fulfill the function of direct support for operations: (1) command and control; (2) sustainment; and (3) personnel services. Of these, the sustainment function (#2) encompasses the most divergent areas of law (administrative law, civil law - including contract, fiscal, and environmental law, claims, and international law). Sustainment functions also include the negotiation of Acquisition and Cross-Servicing Agreements (ACSAs) and Status of Forces Agreements (SOFAs) - explained below. The command and control function primarily involves ROE, LOW, and targeting. Targeting is more than advice on what bridge to blow up (e.g.) and requires OPLAW personnel to know weapons systems, the various types of munitions, and their potential for collateral damage. Personnel services include soldier discipline, trial advocacy functions, and legal assistance to soldiers. This section isn't the most well-organized section of Graham's (2005) article, and an explanation of the four areas of law for sustainment purposes may be in order, as follows:

ACSAs

SOFAs

Acquisition and Cross-Servicing Agreements (ACSAs) are bilateral agreements with allied nations or regional organizations enabling DOD to acquire logistical support (food, fuel, ammunition, etc.) without resorting to otherwise slow bidding and contracting procedures. They in no way commit a country to military action. (The US has ACSAs in place with about 76 countries.)

Status of Forces Agreements (SOFAs) are any type of binding international agreement which seeks to order and arrange the competing legal and jurisdictional issues regarding the host nation and any nation sending troops; also usually detailing the rights and responsibilities of US personnel when stationed or engaged in a mission. (The US has about 108 permanent SOFAs of various types with 104 countries.)

Actual Practice of OPLAW -- Graham (2005) approaches the actual practice (real world) of OPLAW via a case study approach, which works for elucidating some of the complex issues involved. Four (4) case studies are presented: (1) Operation Just Cause in Panama 1989-1990; (2) Operation Desert Storm in Kuwait 1991; (3) Operation Allied Force and Task Force Hawk in Serbia 1999; and (4) Operation Joint Guardian in Kosovo 1999. Each of these cases had an important influence in the history of OPLAW, as follows:

* Operation Just Cause -- Given the increasingly visible deterioration of Panama into narco-culture, the US military had plenty of time to devise an OPLAN and custom-tailor the ROE to limit collateral damage by minimizing collateral damage and restore normal life as quickly as possible. Some 4,000 captured Panamanians (of unclear combatant status) were treated as POWs with full protections under the Geneva Conventions until a Geneva Convention Article 5 tribunal (an informal fact and truth finding three-person panel usually hastily assembled in a tent on the battlefield to see if captured persons are enemy combatants or not) could be assembled to sort of their classifications. OPLAW personnel also assisted with advice on battlefield "confiscation" of property (helicopters and vehicles needed for mission success) and whether firing on cultural structures (temples) was justified if the enemy was misusing it.

* Operation Desert Storm -- After the final ultimatum was ignored, the all-out attack called Desert Storm took place, with commanders receiving legal advice on an almost target-by-target basis, avoiding archeological and religious sites, as well as weighing the options to hit high-risk targets with nearby civilians, not an easy task given the Iraqis were parking military targets next to civilian locations like hospitals (i.e., using human shields). OPLAW personnel played a role in advising that the vast number of prisoners could be put to work as spies, interpreters, and gravediggers, if compensation was involved and the work was not unhealthy, dangerous, or humiliating. Desert Storm was also the first time the American Army had occupied enemy territory since the Korean War. Occupiers have special obligations, such as to maintain law and order and ensure adequate food, water, and medical supplies. Likewise, liberators (of Kuwait) also have an obligation to help with nation rebuilding efforts. "Environmental" war crimes came into play with the Iraqi burning of oil fields, contract law regulated the use of local drivers transporting supplies, and battlefield friendly fire incidents were investigated. It was the most legalistic war ever fought.

* Operation Allied Force -- After Yugoslavia tried to annex Kosovo into the province of Serbia, conflict escalated with the Kosovo Liberation Army (KLA). A UN call for a cease-fire was ignored, and so NATO authorized air strikes against Serb military targets until the NATO Kosovo Force (KFOR) could get in place to keep the peace. During the air campaign (Operation Allied Force), Internet technology was used for collaborative sessions via a chat room and web pages to give legal advice on targeting. During Task Force Hawk, US forces were placed under potential NATO command and OPLAW personnel helped sort out whether US ROE or NATO ROE applied to operations. Humanitarian relief operations were also put together afterwards, as were claims procedures. Processing claims is no small task in some countries because only the most primitive system of property ownership and deed registration exists. Graham (2005) downplays this operation as information warfare (sometimes called C3I for Communications, Command, Control and Intelligence) or as Campen (1995) would have it, one of the Cs referring to Computers.

* Operation Joint Guardian -- 39 nations participated in this NATO peacekeeping mission which followed Operation Allied Force, and consensus in an operation this large had to be hammered out over what the common meaning was for things such as "firing in self-defense" and "hostile intent" (common ROE concerns). Establishing law and order was the primary objective of the mission, no small task with the dysfunctional criminal justice system that existed in Kosovo. Under international occupation law, occupiers have to try and work with the domestic law when it comes to establishing law and order. The resumption of core civil institutions was also difficult. Claims, for example with the Albanian side to the conflict, had to deal with the problem of a fairly primitive system of property and deed registration. OPLAW also almost had to step in and decide what to do with the criminal misconduct accusations which were being filed against many of the private contractors supporting the military mission. Fortunately, Congress passed the Military Extraterritorial Jurisdiction Act (pdf) to deal with the matter.

OPLAW Training -- Graham (2005) concludes his article with a brief overview of OPLAW-related curriculum at the Army school in Charlottesville, VA; the Air War College at Maxwell-Gunter Air Force Base; and Navy and Marine training at the Naval Justice School. He also briefly discusses the possibilities for joint training at the Center for Law and Military Operations (CLAMO), which currently only has the Army and Marines. This section, like the rest of the article could have really benefitted from a better discussion of special operations forces (SOF), which weren't mentioned at all, and although the article's purpose was to overview OPLAW from a military lawyer's standpoint, the perspective taken was at a rather high level of occupation grade, and readers might have benefitted from an analysis of what other jobs are done, like the work of paralegals and/or non-lawyers. Relationships between Department of State personnel and OPLAW personnel, for example, might have made for interesting reading; many military organizations like JSOU make an extra effort to reach out into civilian circles. The strongest spots in the article are the two middle sections, although I suppose readers could argue over which operations make the best case studies. The weakest spot is the last section. It seems, with the advocacy of CLAMO, that the author is making the case for after-action reviews and the like. Certainly, thorough training is essential, but to achieve the kind of meta-perspective that is really needed in OPLAW, a comparative approach (e.g. Bentley & Oakley 1995) is needed. In particular, the historical context in a comparison of different operations needs to be analyzed in respect to a wider field of audiences. Take, for example, the issue of casualties, which have political and public opinion consequences, or "implications" (Diehl et al. 1998). Such an analysis might look like this:

The long-accepted principle that "to the victor go the spoils" is a rather sordid phrase, and it should be noted that occupation law is all that stands in the way of this traditional "spoils of conquest" conception. In today's world, nations with troops on the ground after an intervention usually go out of their way to avoid using the word "occupation" as much as possible, preferring instead words like "transitional administration," "provisional authority," or "to-be-named authority." The word occupation has colonialistic connotations, and the US has always preferred the word "liberator" instead of "occupier" (with the exception of Iraq, where the US eventually admitted it was an occupying power; as opposed to Israel's occupation of Palestine, a case where everyone in the international community admits it, except Israel). The accepted principle of American jurisprudence at least since Madison is that "belligerent occupation is in essence a temporary condition in which the powers of the belligerent occupant are not without limit." Yet, the word "occupation" should not be avoided simply because the duties of an occupier are onerous or ambiguous. Far more controversial is the concept of "regime change" where current international law carries strong presumptions against such intervention. However, the practice of regime change goes on, military occupation goes on (the Hague Convention of 1907 defines an occupied territory as one placed under the authority of a hostile army, and Geneva Convention IV says an occupation occurs even when no armed resistance is met), and the norm of non-intervention is frequently violated. It should be noted that Hague Law and Geneva Law are binding even on states not parties to the treaties. Occupation happens, and there is an urgent need for good ideas about its ethical and legal framework. Chesterman (2005), among others, call for a "responsibility to rebuild" as a fundamental part of an affirmative duty or obligation, and given the recent case of Iraq, there may be other considerations which call for revisiting Vatel's (1758) Law of Nations, an excerpt of which appears below:

Vatel's Law of Nations, Book IV (1758)
Emerich de Vattel (1714-1767), Swiss philospher who integrated the ideas of Leibniz, von Wolff, and Grotius in shaping the foundations of international law, the laws of war, occupation law, and had an influence upon the founding fathers.

Those things, of which the restitution is, without further explanation, simply stipulated in the treaty of peace, are to be restored in the same state in which they were when taken: for the word "restitution" naturally implies that every thing should be replaced in its former condition. Thus, the restitution of a thing is to be accompanied with that of all the rights which were annexed to it when taken. But this rule must not be extended to comprise those changes which may have been the natural consequences and effects of the war itself and of its operations. A town is to be restored in the condition it was in when taken, as far as it still remains in that condition at the conclusion of the peace. But if the town has been razed or dismantled during the war, that damage was done by the right of arms, and is buried in oblivion by the act of amnesty. We are under no obligation to repair the ravages that have been committed in a country which we restore at the peace; we restore it in its existing state, but, as it would be a flagrant perfidy to ravage that country after the conclusion of the peace, the case is the same with respect to a town whose fortifications have escaped the devastation of war: to dismantle it previous to the restoration would be a violation of good faith and honour. If the captor has repaired the breaches, and put the place in the same state it was in before the siege, he is bound to restore it in that state. If he has added any new works, he may indeed demolish these: but if he has razed the ancient fortifications, and constructed others on a new plan, it will be necessary to come to a particular agreement respecting this improvement, or accurately to define in what condition the place shall be restored. Indeed this last precaution should in every case be adopted, in order to obviate all dispute and difficulty. In drawing up an instrument solely intended for the restoration of peace, it should be the object of the parties to leave, if possible, no ambiguity whatever, nothing which may have a tendency to rekindle the flames of war.

Rebuilding is the costliest aspect of recovery, a process which includes repair and restoration, the latter being aesthetic features for the most part. Before one can even get to those points, there's got to be stabilization (sometimes called Phase Four in the language of Rules of Engagement). Stabilization has been traditionally approached as a reactive practice (you set up law and order institutions that keep the peace by cracking down on crime when it occurs), but all that is changing, and "offensive stabilization" operations now seem necessary and essential. Stabilization is often needed in places that are in-between war and peace. Current rebuilding efforts in Iraq are instructive. Offensive operations need to be carried out against remaining remnants of a regime, to say nothing of the influx of foreign fighters, terrorists, martyrs, warlords, thugs, criminal entrepreneurs, and wannabes. And then, there has to be the traditional peacekeeping and civil affairs, like helping rebuild electrical grids and sewage systems, and basically patrolling the streets like policemen. Combat and peacekeeping occur simultaneously, not in neat, sequential order. A couple of observations can be noted in such operations-rich environments. One, there may be a need for "relocating" the civilian population away from where the fighting is still taking place, and this usually results in some resentment since civilians under such conditions will most likely want to "hunker down" in their homes, or at least close to their ancestral burial grounds. Hence, creation of "safe zones" or "green zones" is likely to be problematic. Two, multiple combat and peacekeeping operations tend to exacerbate the problem of "divided loyalties" which usually are divided to begin with, in terms of "loyalty" (always changing) and "allegiance" (stays the same). Some civilians will support the combat but despise the peacekeeping; others will support the peacekeeping but despise the combat. Few will support both, and it is entirely possible for perceived incongruities to produce a situation where some civilians fight for both sides, both for and against occupation forces, which seems strange, but is understandable when it is understood such fighting is done in the name of vengeance (or family honor) and not out of loyalty.

Two treaties form the basis of the international law of occupation: (1) the 1907 Hague Convention called Regulations Respecting the Laws and Customs of War on Land; and (2) the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention or GC IV). These treaties, and their interpretation, tend to support the idea that an occupier is only a temporary steward or "conservationist." An occupying power is only supposed to be a temporary custodian of the status quo in the territory it controls. Occupation is only supposed to be something that occurs over a limited time period between the cessation of hostilities and the implementation of a final peace treaty. Thus, an occupier enjoys only de facto power, and is not supposed to be making sweeping, permanent changes to legal and political structures. Any such changes should be self-determination choices left up to the indigenous people upon the return of some semblance of governance after the occupation. However, if the existing laws of the land are themselves in violation of international law (e.g., totalitarianism; established customs of horrific human rights abuse), then there may be an obligation to reform on the part of the occupying power. It is this obligation to reform which makes up the foundation for nation rebuilding.

If an occupier keeps the old laws and structures in place, running the country in the same totalitarian manner as the ousted regime with a puppet government, that would be colonialism. If the occupier insists on full and complete Western-style ideals of democratic governance, that would be annexation. If the occupier keeps troops on the ground to support indoctrination of the masses, that would be imperialism. None are good choices. Contrary to Michael Ignatieff's (2002) claim that America's entire war on terror is an exercise in imperialism (or nation building lite - doing it all on the cheap, at the lowest level of investment and risk), the proper and only appropriate form of nation rebuilding is to seek a balance between the obligation to reform and the right to self-determination. An article by Fox (2005) makes it clear that this is not only the most viable solution, but one that manages the complex legal interplay between principles of conservationism and reform.

For the goal of reform, Fox (2005) argues that occupiers ought to at least acquire some valid legislative authority to engage in nation rebuilding, and that kind of authority usually comes from the UN Security Council. However, the Security Council is highly unlikely to ever issue a "blank check" for such a purpose, especially if the mission is along economic lines, like "building a free market and free enterprise system" which triggers globalization fears. However, private sector and economic initiatives made up at least two of six areas of reform that the Iraqi CPA (Coalition Provisional Authority) undertook (see diagram and remember that the fiscal law approach always requires an endgame or handoff). CPA administrator Paul Bremer said that the most immediate priority was the need for a "transition from a non-transparent centrally planned economy to a market economy characterized by sustainable economic growth through the establishment of a dynamic private sector along with the institutional and legal reforms to give it effect."

The issue of transparency aside, a need may exist to "educate" the population about occupation law. For this, one would have to build on Hague Law and Geneva Law in academic or pedagogical directions, but there may be some things which are difficult to express, such as the complex practicalities covering matters built into military manuals on the subject (e.g., FM 3-0 or FM 3-07). Perplexing problems exist even on the academic side, such as the number of "exceptions" built into GC IV which pose certain difficulties. For example, the penal law of an occupied territory need not be kept in place if it poses a risk to national security or an obstacle to the effective administration of justice. Somewhat widespread reform might be initiated in the name of justice, but criminal procedural reforms have limits. Other domestic laws (and political institutions) can be transformed only if such actions do not intentionally (or by effect) lead to "creeping annexation." The great question of our time is whether "free market" transformations constitute "creeping annexation," and like the issue of whether an occupying power can collect taxes, both Hague Law and Geneva Law are silent on these matters. On the practical or military side, most occupying forces rely heavily upon martial law, which is typically used to suspend civil liberties such as freedom of speech and assembly and/or the carrying of firearms, but military necessity (and the orderly administration of territory) also allows removal of officials, anti-corruption measures, and the possibility for economic reform. Martial law is something of an oxymoron since it's not really any kind of law at all, but the suspension of standing law. An intelligent approach to resolving these difficulties would be to design an exit strategy where the decision to militarily withdraw does not depend upon some vague notion of "when things are under control" or upon any expectations about free market transformation, as Preble (2004) notes.

Consent is an element which should certainly play a role in any law of occupation, and indeed, this is the standard approach to legitimacy favored by rule of law advocates like Elster (1994) where you establish electoral freedom and an interim constitution (called "midstream legitimacy") which eventually leads to adherence for the principles of plurality, publicity, and legality (called "upstream legitimacy"). However, a better approach might be to take on the notion of "regime change" directly. It makes little sense to preserve the vestiges of an ousted regime when the mission goal was regime change in the first place. This approach smacks a bit of moral superiority (our regime is better than your regime), and would almost certainly require UN involvement, but there needs to be a better method for getting rid of illegitimate rulers and prioritizing the reforms afterwards. Dismantling undemocratic military and intelligence institutions might take precedence over establishing an electoral process; or religious schools (like madrasas that crank out hate training) might be deserving of priority. Unilateral military intervention is controversial, but the need for regime change points to the need to rethink (and possibly combine) the Jus ad bellum body of just war theory (why intervene in the first place) with the Jus in bello body of law, of which occupation law is but a subset. There may also be a need for rethinking the postcolonial, Westphalian-like principle of autonomy (every state having an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another). Neither Hague Regulations nor Geneva Laws should protect rulers who exploit this right to autonomy in creating a regime which falls below certain minimally acceptable standards of humanity. Contemporary human rights law may provide guidance. It might also be suggested that the international community should consider updating Hague Regulations and Geneva Laws to better reflect the realities of modern military intervention.

Nation rebuilding is costly (as are many military operations). Fiscal law helps control numerous problems which might arise over whether, for example, sufficient legal review took place for how US money was spent overseas (although in some cases, CONUS, or Continental United States projects, as in military assistance following the wake of a natural disaster, might be subject to the same constraints). Military spending (during deployment abroad) will primarily be in three areas: (1) construction; (2) training; and (3) humanitarian and civic assistance. First, let's look at construction. Each service has an annual military construction (MILCON) budget, and MILCON is different from civilian construction in that the military must, by law (under 10 U.S.C. § 2801 and 10 U.S.C. § 2854, Restoration or Replacement of Damaged or Destroyed Facilities), produce a "complete and usable facility" or a "complete and usable improvement to an existing facility" which means completely rebuilt, not just partial completion or a project completed in phase. Maintenance (recurrent work to prevent deterioration) and repair (restoration for use for a designated purpose) are NOT considered construction and are NOT subject to these restrictions (although they are subject to others). The usual maximum is $3,000,000 (average project cost: $750,000) but that must be a project “intended solely to correct a deficiency that is life-threatening, health-threatening, or safety-threatening.” Commanders in the field also have access to Commanders' Emergency Response Program (CERP) funds, but these funds come with various conditions that a commander may not like. Congress may also earmark funds for specific projects. Commanders in the field also have certain discretionary powers regarding the granting of refugee status that is subject to fiscal law.

A general rule of fiscal law is to carefully distinguish between those items or services which the US may sell, grant, or loan to a foreign country (as security assistance) and those activities the US conducts which are part of deployment in a foreign country, for which the US is the primary beneficiary (i.e., the security interests of the US are promoted) and the foreign country only receives a minor or incidental benefit. Problems can arise in a number of ways unless this rule is followed. For example, people in the host country can make claims for property that was destroyed in conflict, members of their family who got caught in cross fire, environmental damage left behind by construction projects, etc. American forces follow US Environmental Law when overseas. An additional problem presents itself when the US military "outsources" logistic or construction projects to private contractors. Private contractors present status issues. They are supposed to be distinguished by a little triangle they wear on their uniforms, but in practice, they are sometimes indistinguishable in both appearance and action, yet military law has little to no jurisdiction over them and unless the host country has an interest in prosecuting them for some misdeed, they could literally get away with murder. Hence, the importance of foreign criminal jurisdiction, which is a topic we take up later.

Getting back to fiscal law as a control over spending, another area it applies is training (e.g., training a new military or police force). Here, spending is primarily going to be in the areas of counterdrug and counterterrorism training, the latter usually under the auspices of Joint Combined Exchange Training (JCETs) conducted by Special Operations Forces (including civil affairs and psyops forces), since 10 U.S.C. § 2011 authorizes "training with armed forces and other security forces of a friendly foreign country” (including paying or reimbursing "incremental expenses" of a developing country) because of SOF's own training requirements. Vetting (conducting security background checks) of trained security forces is of paramount importance. Annual Defense Appropriations Acts prohibit DoD from using funds for training programs involving a unit of a foreign security force, where credible info from DoS indicates that a member of that unit has committed "a gross violation of human rights, unless necessary corrective actions have been taken." Examples would include torture or cruel, inhuman, or degrading treatment or punishment; prolonged detention without charges and trial; causing disappearance of persons by the abduction and clandestine detention of those persons; and other flagrant denials of the right to life, liberty or the security of a person or persons. OPLAW personnel are often involved in vetting. Sometimes, even allies (like NATO allies) have to be vetted. Waivers may only be given in "extraordinary circumstances." Annual vetting is not permitted. A host nation cannot change a trained unit unless the new unit has also been vetted.

Humanitarian and Civic Assistance (HCA) is the third area of military spending we shall consider. It comes in two forms: (1) earmarked; and (2) de minimus. All HCA activities must be approved by the host country, and by law, “shall complement, and may not duplicate, any other form of social or economic assistance” provided by the U.S. and must serve the basic economic and social needs of the people of the country as per 10 U.S.C. § 401(a)(2). Earmarked funds require the Department of State (embassy country teams) propose ideas to the Department of Defense, or otherwise be involved in determination of host country need. Examples and standards include: medical, dental, and veterinary care for rural or underserved areas; construction of rudimentary surface transportation systems; well drilling and construction of basic sanitation facilities; and the detection and clearing of landmines. However, it should be noted that U.S. military personnel may not participate in the physical detection, lifting, or destroying of landmines (unless for the concurrent purpose of supporting a U.S. military operation) or provide landmine detection and clearing assistance as part of a military operation that does not involve U.S. armed forces.

De minimus HCA involves "incidental" spending, which is expected to involve "minimal" expenditures. It has to meet a "reasonable" standard -- would a reasonable person consider it "incidental to the exercise"? Examples include: conducting medical exams of local villagers for few hours with administration of several shots and issuance of some medication, but not dispatch of a medical team for mass inoculations; or opening an access road through trees and underbrush, but not asphalting any of the roadway.

Claims vary from country to country. The Foreign Claims Act ("to promote and maintain friendly relations through the prompt settlement of meritorious claims" 10 U.S.C. §2734) covers most situations, and the US does a good job of investigating claims regardless of who or what caused them. However, tort law is different in some places. For example, in Japan, Korea, and Thailand, there is a concept called "solatia" which is intended to express immediate condolences, sorrow, etc. In its purest form, the person making the offer of solatia does not have to be at fault -- just involved in the incident. In some Southwest Asian countries (e.g., Saudi Arabia, Yemen), there is the concept of diyah or “blood money.” The concept is Islamic -- if someone is killed, the closest relative has the choice of blood money or retaliation by killing the killer. In some countries blood money is paid, regardless of fault, especially if the survivor is wealthier than the victim. Payment of blood money is considered compensation, and is paid in fulfillment of a claim, not in addition to a claim. The United States only pays if it caused some death or damage. There is a two year statute of limitations for most claims. Claims are paid in local currency, usually in person, and the claimant must sign a settlement agreement. There are a number of circumstances where the US does NOT have to pay claims, including: (a) any issue involving private debts; (b) bastardy claims; (c) negligence of any contractor; (d) personal activities of family members, guests, servants, or pets of US personnel; (e) missing a target if malfunction is not involved and it is part of the mission (e.g. mistakenly bombing civilians); and (f) friendly fire incidents.

Deployed US forces are not immune from host nation criminal jurisdiction, although there is a distinct tendency for the US to avoid jurisdictional disputes with foreign governments where possible, to maximize US jurisdiction to the extent permitted, and to protect the rights of US military, civilian personnel and their dependents who may be subject to criminal trials in foreign courts. The area of foreign criminal jurisdiction (FCJ) has an interesting history both in the law of the seas and in OPLAW. For many years, the case of Schooner Exchange v. McFadden (1812) was precedent, stating that forces temporarily passing through the territory of a friendly state with its permission in time of peace were exempt from the host country’s jurisdiction. However, as American forces became permanently stationed overseas, this precedent wouldn't hold, and the US began relying on SOFAs (see above), in essence, getting states to voluntarily cede jurisdictional rights by agreement. In almost all cases, the NATO SOFA formula for the allocation of jurisdiction has been the standard. It was never intended that the NATO SOFA should constitute a precedent, but it did. The model goes like this -- the US has "exclusive" jurisdiction if the offense is primarily a violation of the sending state's law and such an offense would not be a violation of foreign law. For example, a US service person who is AWOL (Absence Without Leave) would most likely be subject to US law first, and a service person who took pictures of a host country's restricted site would most likely be subject to foreign law (absent a corresponding US proscription against that behavior).

Most cases, however, involve "concurrent" jurisdiction where the service person has committed, say, a robbery, which is a violation of both US law and foreign law. The NATO SOFA model holds that in such cases, foreign law takes priority, but there are two major exceptions: (1) "inter se" cases which involve offenses committed against other Americans or American interests; and (2) "official duty" cases which most commonly involve use of excessive force which occurred in the performance of duty. Despite these exceptions and the hard work of OPLAW attorneys in ad hoc negotiations toward pursuing waivers, tens of thousands of Americans are tried every year in foreign courts. The US often uses diplomatic channels to protest confinement of its citizens in foreign jails. It also often sends investigative help -- although some countries are sensitive to "American agents roaming around." Court costs are usually paid for by the US government, and at trial, a legal advisor (or observer) may be paid for, as are any costs associated with hiring local defense counsel. Attention is paid to the rights of American defendants in foreign countries, not a small matter of concern since martial law prevails in some countries. The following is what the US holds to be a fundamentally fair trial:

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Last updated: Oct 27, 2006
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.

Date	Operation	Casualties
1980	Iranian Hostage Rescue Mission	8
1983	Urgent Fury, Grenada	19
1983	Lebanon Peacekeeping	241
1989	Just Cause, Panama	23
1991	Persian Gulf War	383
1992	Restore Hope/UNOSOM, Somalia	29
1994	Uphold Democracy, Haiti	4