Mea Culpa: The Military's Proper Role in Strengthening the Rule of Law During Armed Conflict

My contribution to Lawfare's 10^th Anniversary Project concerns the role of the military in strengthening justice institutions in countries struggling to emerge from instability, a topic on which my personal and professional views have changed as a result of deployments to Iraq and Afghanistan and service in U.S. national security ranks.  Ten years ago, having recently participated in successful coalition operations that emphasized a fairly stark separation between NATO's security force efforts and the “international civil presence” in Kosovo, I shared with my peers a variety of post-Cold War concerns over "mission creep."  Though we earnestly studied the problem and by no means held uniform opinions on the matter, I and other officers in my generation tended to believe that nearly any form of United States military support to host nation civil legal structures would take our forces outside their proper lane and also undermine war-fighting capabilities.  This largely academic, ahistorical, and untested belief—combined with worries expressed by diplomats and development specialists about militarizing programs that must be civilian-led in order to succeed—contributed to a hands-off approach.  As a result, “Phase IV” operational planning was superficial, and this hobbled both military and civilian effectiveness during real hostilities.  While I am more convinced than ever that strengthening a justice system is fundamentally a project for the civilian leaders of the nation involved, and while I make no mea culpas for peers who can speak for themselves, I see now that I was wrong to assume that our military could stay out of the picture as courts, police, prisons, informal dispute resolution mechanisms, and civil society organizations spontaneously emerged and armed conflict gradually abated. The hard fact is that in countries fighting insurgencies, coalition military forces—for what can seem a frustratingly extended time before local means exist—may be the only state-sanctioned way to provide the justice sector necessary security, movement, communications, logistical support, procurement capability, and coordination with international sources of technical assistance. And while military commanders must not allow the combat skills of forces furnishing such support to erode, nor civilian rule of law policy-makers and program managers fail to work urgently to relieve our armed forces of these duties, there is a transition period that cannot be wished away.  Fortunately, I am not alone in having learned this lesson. The U.S. recognized the need for a dedicated organization to undertake rule of law support efforts on 1 September 2010 (remarkably also the birthday of this important blogspace), when it created the Rule of Law Field Force--Afghanistan as part of a reformed justice sector program coordination apparatus to be headed from our Embassy in Kabul.  Then in July of this year, forty-nine nations of NATO and ISAF agreed to establish a parallel mission for rule of law support as part of a new “comprehensive civil-military approach” in Afghanistan.  The August graduation and subsequent deployment of our second class from Rule of Law Field Support Officers’ Academy has further validated the lessons of the past ten years. These fine troops and civilians are providing essential field capabilities, security, and liaison for brave Afghan justice officials and committed international workers seeking to fill the vacuum of governance in contested districts.  Humbled by experience, we can all see that this approach is a critical part of the effort to transition of security responsibilities to Afghan authorities in an effective and sustainable way.

The 2d graduating class from the Rule of Law Field Support Officers’ Academy, with faculty, atop a hill in Kabul, Afghanistan, in August, 2011. Brigadier General Mark Martins is the Commander of the Rule of Law Field Force—Afghanistan.