AMSI - AMLEP Civilian Control and Role of the Commander in Disciplined Military Operations

1. AMSI - AMLEPCivilian Control andRole of the Commander in Disciplined Military Operations

2. Respect for Civilian Authority • Democracy & Human Rights • government obtains its power & legitimacy from the people • democracy’s institutions ensure human rights • military respect for civil authority ensures its own legitimacy with the people • Rule of Law & Human Rights • the best government is one of law and not of men • the rule of law provides fair treatment which leads to high morale & obedience Without Civilian Control the Military is a Threat to Human Rights

3. Cornerstones of Disciplined Military Operations I. Commonly Accepted National Principles • Constitutional Government • International Law – treaties and customary norms • Respect for Human Life – abhormurder, torture, arbitrary punishment • Standards of Conduct – publicservants do not serve themselves at public expense

4. Cornerstones of Disciplined Military Operations II. Clear Rules • Contingency Plans • Operations Orders • Rules of Engagement (ROE)

5. Cornerstones of Disciplined Military Operations III. Reliable Oversight • Command and Control • Military Legal Advisors • Governmental Oversight – military accountable to civilian leadership • Military Systems – Inspectors General; information flow up and down the chain • Free Press

6. Cornerstones of Disciplined Military Operations IV. Certain Discipline • Military Justice System • Administrative Measures • Low Impunity Rate

7. Command Responsibility • “Responsibility” has professional and legal contexts. • Professionally, commanders are responsible for everything their units do or fail to do. • Legally, commanders may be criminally responsible for the acts of their troops. • International law • National law

8. Downward Spiral of Undisciplined Operations • Desire for expediency caused by frustration with combat losses • Lack of strong leadership leads to indifference to the rule of law • Acceptance of transgressions can become the norm

9. Positive Results from Rule of Law in the Military • Excellent Morale • Unit Efficiency and Effectiveness • Loyalty to the Command and the Nation • Positive Public Image of the Military

10. Benefits for Military Commanders • Increased Independence and Authority • Opportunity for Feedback • Enhanced Unit Morale

11. Benefits for the Military • Uniformity in Treatment of the Citizen Soldiers • Clear Guidance • Confidence of Civilian Government • Enhanced Military Morale

12. Benefits for a Democracy • Civilian Control of the Military • Military Decisions Founded in Law - Not Personal Interest

13. AMSI - AMLEPInternational Human Rights Law 13

14. Introduction Human Rights Defined Compare to Humanitarian Law armed hostilities international & internal armed conflict Sources of Human Rights international agreements customary international law domestic law of each state 14

15. Customary International Lawof Human Rights Prohibits States From: genocide slavery or slave trade murder or disappearance of persons torture or other cruel, inhuman or degrading treatment prolonged arbitrary detention systematic racial discrimination consistent pattern of gross violations of other internationally recognized human rights 15

16. Right to Liberty & Security Rights of Persons Arrested or Detained: arrest or detention only on lawful grounds using lawful procedures be informed of reason upon arrest & promptly informed of the charge promptly brought before a judge, and either trial or release in a reasonable time court hearing without delay on lawfulness of detention compensation for unlawful arrest or detention International Covenant onCivil & Political Rights 16

17. Criminal Trial Rights: fair & public hearing by a competent, independent and impartial tribunal established by law no retrial following conviction or acquittal trial without undue delay presumed innocent until lawfully proven guilty promptly informed of charge in own language adequate time & facilities to prepare defense & consult with counsel International Covenant onCivil & Political Rights 17

18. Criminal Trial Rights: be present for trial, to own defense or through counsel of own choosing, counsel at no cost when justice requires examine witnesses, obtain own witnesses free interpreter if trial in other language not to be compelled to testify or confess guilt public disclosure of judgment unless a juvenile review of judgment by higher tribunal Persons Detained or Convicted Treated With Humanity & Dignity International Covenant onCivil & Political Rights 18

19. African Charter on Human and Peoples’ Rights One of four regional human rights agreements Adopted 1981; entered into force 1986 All 53 African Union countries are parties Incorporates many rights and guarantees found in other international human rights agreements 19

20. African Charter – Economic, Social and Cultural Rights “New” rights not covered by other human rights regimes: To participate in government Access to public service Access to public property and services 20

21. African Charter – Civil and Political Rights Freedom from discrimination Equality before the law Equal protection of the law Freedom of association and assembly Freedom of conscience and practice of religion Freedom of access to information Freedom of expression Free access to judicial bodies 21

22. African Charter – Civil and Political Rights Right to life and integrity of person No arbitrary deprivation Liberty and security of person Freedom from arbitrary arrest or detention 22

23. African Charter – Civil and Political Rights Right to fair trial Presumed innocent Present defense, represented by counsel Within reasonable time By impartial court or tribunal Retroactive application of criminal law prohibited Collective punishment prohibited 23

24. AMSI - AMLEPRight Against Torture and Other Cruel, Inhuman or Degrading Treatment 24

25. Torture, Cruel, Inhuman or Degrading Treatment Convention on Torture Definition: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person….” Cruel, Inhuman or Degrading Treatment undefined by international law national law fills the void Prohibited 25

26. Common Article 3of 1949 Geneva Conventions Detained persons must: be treated humanely not be subject to violence to life and person not be subject to humiliating or degrading treatment be cared for if wounded or sick 26

27. U.S. Approach: FM 2-22.2 Human Intelligence Collection Operations Detainees treated: humanely; no torture, or cruel, inhuman, degrading treatment; prohibited actions include: forcing detainee to be naked, perform sexual acts, pose in sexual manner hooding, duct tape over eyes beatings, electric shock, other physical pain "water boarding" use of military working dogs inducing hypothermia or heat injury mock executions deprivation of necessary food, water, or medical care 27

28. AMSI - AMLEPRules for the Use of Force in Military Law Enforcement and Security Duties – U.S. Approach 28

29. Use of Force in Military Law Enforcement and Security Duties Scope of Duties Law Enforcement and Security of U.S. Military Installations, Personnel, & Property Mindset Combat (Enemy Declared Hostile) v.Law Enforcement/Security (Ltd Force) Legal Framework National Law  SECDEF Directive  CJCS Instruction  Service Regulation 29

30. Guidance on Use of Force Carry Out Duties Without Force If Possible Only Use Minimum Force Necessary Consider Force Options verbal persuasion unarmed defense techniques chemical aerosol irritant military police club 30

31. Guidance on Use of Force Consider Force Options (continued) military working dog presentation of deadly force capability deadly force Warning Shots Prohibited When Possible Verbally Warn Remove Gun From Holster Only If Use Is Reasonably Expected 31

32. Guidance on Use of Deadly Force Shoot to Stop Shoot Only With Due Regard For Innocent Bystanders Use Deadly Force Only When: lesser means won’t work risk to innocent not significantly increased reasonably necessary to accomplish 1 of 7 purposes 32

33. Deadly Force Only To: Protect Against Imminent Threat of Death or Serious Bodily Harm Prevent Serious Offense Involving Death or Serious Bodily Harm Prevent Theft or Sabotage of Asset Vital to National Security Prevent Theft or Sabotage of Property Creating Imminent Threat Prevent Sabotage of National Critical Infrastructure Arrest Person Who Committed Offense Involving Imminent Threat Prevent Escape of Prisoner Who Has Committed Serious Offense Involving Imminent Threat 33

34. AMSI - AMLEP The Military and Sexual Violence: The U.S. Approach 34

35. Sexual Violence Scenarios Non-combat/wartime – most U.S. experience is in this area Social relationships Abuse of authority Due to disparity in power, consent normally not recognized. Even if no sexual contact, often punished as inappropriate social relationship. Training / Recruitment Combat/wartime: pre-WWII  WWII  Vietnam  Kosovo  Iraq

36. Official Studies DACOWITS (DoD Advisory Committee on Women in the Services) Special study of sexual assault Report issued in 2004 DoD Task Force on Care for Victims of Sexual Assault – 2004

37. Legal Developments Article 120, UCMJ – Rape, sexual assault and other sexual misconduct. Military Rule of Evidence 412 – often referred to as “Rape Shield Law”. Limits questioning of victims regarding their sexual history.

38. Policy Developments Victim and witness protection Helps overcome reluctance of victims and witnesses to make official reports Provides enhanced care and treatment DoD Directive 6495.01 Established Sexual Assault Prevention and Response Program (SAPRO) DoD Instruction 6495.02 Detailed SAPRO procedures

39. Primary Lesson Learned Acknowledge the extent of the problem, study its causes, and openly address its resolution, including individual accountability, leadership failures, and inadequate legal and policy frameworks.

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