Military Lawyers and Military Legitimacy

Military lawyers in both the active and reserve components represent a largely untapped source of military advisors for nation assistance. They are an integral part of a CA capability, but they also represent an independent capability well suited to advise both military counterparts and civilian authorities in transitional nations.²⁹

By professional training and discipline, lawyers are advocates and advisors, not commanders, and are well versed in the practical application of the rule of law as it relates to human rights and democracy.

The command or staff judge advocate (SJA) is the commander's legal advisor, and is responsible for advising the commander on all OPLAW matters, including those involving civilians. On a general staff the commander also has a civil-military advisor, the civil-military officer (CMO) or G-5, who is '... the principal staff assistant to the commander in all matters concerning political, economic and social aspects of military operations'.³⁰ The CMO must co-ordinate closely with the SJA in assisting command compliance with OPLAW requirements affecting civilians.³¹

Commanders may not have access to a CMO with CA expertise; with 97 per cent of CA officers in the USAR, there are few CA officers available to serve on active component staffs. When no CA officer is available the next best CMO is a military lawyer; that is because compliance with OPLAW (as it relates to civilians) is a major part of the CA mission.

The Marine Corps provided a useful precedent for all Services when it assigned CA staff support functions to its lawyers. The CA tasks assigned to Marine Corps lawyers are not limited to legal support, but include all CA command support functions until CA personnel can assume them.

There are precedents withm the Army for having military lawyers serve as G-5. During the Second World War approximately 200 highly-qualified lawyers were assigned to civil affairs and military government duty. Moreover, there were instances in which commanders had their SJA perform the function of the CMO, recognizing the similarity of the duties of the two staff functions. Based on this experience, recommendations were made after the war to assign CA legal duties (then referred to as military government) to the SJA.³³ Promoting military legitimacy

While the primary function of the military lawyer is advising commanders and staff on the requirements of OPLAW, and by extension, military legitimacy, military lawyers have also demonstrated a capability to advise counterpart military lawyers and civilian authorities in emerging democracies on matters of law and legitimacy.

In Latin America, Army lawyers have led a unique joint venture with their Peruvian counterparts to develop and institutionalize training within the military for human rights. To achieve the long-term objective of helping the Peruvian military assume a more 'professional role appropriate to a democracy' the concept of human rights had to be inculcated 'into the psyche of the military'. The training was designed to 'foster greater respect for, and an understanding of, the principle of civilian control of the military; and improve military justice systems and procedures to comport with internationally recognized standards of human rights'.³⁴

Over the years Peruvian soldiers had become hardened by the brutality of the Sendero Luminoso (Shining Path) and the drug traffickers who were their partners in crime. President Fujimori understood the threat of military brutality to military legitimacy and the need for the Peruvian military to respect human rights.

Foremost in Peru's fight for survival was maintaining the legitimacy of the Peruvian government, wherein true democracy would have a chance to endure. A major step in remedying the legitimacy issue was to inculcate human rights and the law of armed conflict training into its armed forces.³⁵

Such advisory activities to improve human rights and civil-military relations are a priority in Latin America according to General Joulwan, who has advocated ambassador-developed country plans to

.. assist nations within the theater with the professional development of their military forces to guarantee human rights while defending against internal and external security threats.³⁶

General Joulwan left USSOUTHCOM to become commander of US forces in Europe; now he will be able to apply his successful experiences in Latin America to the challenges of his new AOR. That should include adapting the Peru model for promoting human rights and civil-military relations to the emerging democracies in Eastern Europe, where, as in Latin America, the militaries have a history of human rights violations that have contaminated civil-military relations.

Army lawyers are already promoting military and political legitimacy with their counterparts in Eastern Europe. They have also helped civil authorities develop the legal structures required for democracy in Eastern Europe. In a 1992 conference hosted by the European Community for emerging democracies, Army lawyers presented classes and hosted panel discussions. The theme of the conference was The Role of the Military in a Democratic Society and there were particpants from Lithuania, Latvia, Estonia, Czechoslovakia, Hungary, Bulgaria, Romania and Albania. According to an Albanian delegate, military lawyers at the conference were something of a curiosity:

Prior to the revolution we had no military lawyers in the army. We do not know what a legal advisor is because we have not had any in the past.

A Lithuanian delegate expressed reservations about civilian control of the military:

You speak of civilian control - well, we must wait and see which direction the political leaders will take us.³⁷

One of the US Army lawyers in attendance characterized the conference as a success and was optimistic about promoting democratic ideals in the region:

An idea implanted now may find its way quite easily into a constitution, a presidential directive, or a national regulation and may reap enormous benefits in the years to come.³⁸ CA legal support

Army lawyers have an especially important role in CA due to its emphasis on compliance with OPLAW; but more is expected from the CA lawyer than legal support.

The pivotal role of lawyers in matters of legitimacy is reflected in a CA study that recommends Expanded Political and Legal Missions for CA:

The experience of recent conflicts has validated an expanded role for CA in certain sensitive political and legal areas. These CA missions need to be given a clearer foundation in doctrine and incorporated in joint planning and training.

The study noted that human rights were a major concern in newly-liberated areas during the Gulf War, and that

... the broad area of moral and legal responsibilities toward the civilian population in a conflict environment calls for a significant role for CA personnel.

It underscored the need for CA legal support operational functions (for example, helping establish a court system) to co-ordinate closely with command legal support staff functions:

Ideally, CA and JAG [Army lawyer] functions should mesh closely and complement one another, with CA units acting as an operational arm of senior command echelons.

For political and legal missions such as those involving the promotion of democracy, human rights and the rule of law, the study recommends

... the direct interaction of CA officers with US ambassadors as well as most senior officials of foreign governments. The CA role in legal aspects of humanitarian issues needs careful examination, with particular emphasis on the relationship of CA and JAG roles and missions. Such a review ought to consider current requirements for and possible enhancements of legal expertise within the CA force structure.³⁹ Military legitimacy and military justice

Military lawyers have traditionally focused their time and efforts on military justice matters (i.e., military criminal prosecution), not on OPLAW support.

As suggested in Chapter 5, civilian soldier lawyers and judges could assume a greater role in the trial of courts-martial, freeing active component lawyers to focus on operational issues. Other benefits would include reducing negative public perceptions of the court-martial as a military court, minimizing command influence and providing significant defense savings.⁴⁰

With increasing pressure to reduce defense costs by eliminating non-essential services, the peacetime court-martial should become the primary responsibility of those reserve component lawyers and judges who must staff it in wartime. These reservists could try the relatively few peacetime courts-martial on a part-time basis, and in so doing ensure their readiness for wartime responsibilities and eliminate the need for an expensive full-time military infrastructure dedicated to criminal prosecutions.

Military legitimacy would also benefit from such a restructuring of the military justice system. Civilian soldier lawyers and judges who regularly practise in civilian criminal courts would bring to the military courtroom a healthy mix of civilian and military values, helping moderate negative public perceptions of a separate but equal system of military justice.