DAMO-ODL
Apr 1990
SUBJECT: Military Police Authority in Low Intensity Conflicts
1. Purpose: To determine authority and jurisdiction of Military Police to enforce law in low intensity conflicts.
2. Facts:
a. The Army of the future will probably be called upon to operate in low intensity conflicts which affect U.S. security or economic interests or those interests of our allies or others who request our assistance.
b. Justification for intervention in low intensity conflicts will vary with our interests and the situation (e.g., self-defense, defense of an allied nation or a nation who requests our assistance, to honor a treaty or other international agreement, to maintain security in a region, to fight terrorism, to rescue hostages, to help stabilize or rebuild a government, to assist in disaster relief operations, or to neutralize drug trafficking).
c. Military Police, because of their special training and capabilities (e.g., combat, law enforcement, crowd and traffic control, disaster relief, nation-rebuilding, and force protection), have shown their value; and future missions of the Army in low intensity conflicts will require Military Police units especially in the nation-rebuilding phase.
d. Control over the civilian populace and any restrictions will be governed by the laws of the U.S., Treaties or other international agreements, and/or the laws of the host nation depending on the situation.
e. Use of force, apprehension, search and seizure, and confinement and any restrictions will be governed by the laws of the U.S., Treaties or other international agreements, and/or the laws of the host nation depending on the situation.
f. Military police improperly performing law enforcement tasks may be liable for sanctions to be imposed under the laws of the U.S., Treaties or other international agreements, laws of the host nation or laws of another country who has the power to enforce its laws.
COL ABODEELY/54210
ENCLOSURE 1
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MILITARY POLICE AUTHORITY TO ENFORCE LAW AND RESTRICTIONS IN LOW INTENSITY CONFLICTS
In order to determine the "authority" of U.S. Military Police units to enforce laws in "low intensity conflicts", it is important to remember that the term "low intensity conflict" has a broad and varied meaning. (See enclosure 2). Historically, the U.S. has been involved in LIC operations such as in Vietnam, Grenada, and Panama. The future could see U.S. forces, including Military Police, involved in low intensity conflicts in Honduras, Nicaragua, El Salvador, Lebanon, Iraq, Iran, Israel, Federal Republic of Germany, or one of the other emerging "democracies" in Europe.
Low intensity conflict ranges from subversion to the use of armed force, and it is waged by a combination of means employing political, economic, informational, and military instruments.
Justification to use armed forces, including Military Police, can be found under principles of international law and the United Nations Charter, Article 51, which allows a member nation to engage in individual or collective self-defense against an armed attack. (See enclosure 3).
Assuming that the U.S. uses military forces in a low intensity conflict, it may do so under these conditions: (1) it is in self-defense; (2) it is necessary; and (3) it is proportionate to the threat defended against. [See enclosure 3 and DA Pam 27-100126, Vol. 126, at 96 (Fall 1989)].
Once the legal authority or justification for the use of U.S. armed forces (the military) in the low intensity conflict is established, the next question relates to the authority of Military Police to perform their missions during the LIC. The missions of Military Police are battlefield circulation control, area security, enemy prisoner of war operations, and law and order operations. (See enclosure 4).
The authority to perform these missions will stem from the law of the U.S., including the Uniform Code of Military Justice, treaties or other international agreements, and the laws of the host nation.
If the government of the nation in which the U.S. armed forces are deployed, is unable or unwilling to function, or if that government is to be suppressed by U.S. armed forces--then the U.S. military and the "law of war" will govern the conduct of Military Police operations. The "law of war" has evolved through the centuries, and many principles of conduct in combat and principles relating to the treatment of civilians and enemy prisoners of war (EPWs) have been modified in international treaties such as the Hague and Geneva Conventions and the Protocols to the Geneva Conventions. DA Pam 27-1, Treaties Governing Land Warfare, December 1956; DA Pam 27-1-1, Protocols to the Geneva Conventions of 12 August 1949, September 1979.
The law of war applies to U.S. military forces, including Military Police who may become involved in enforcing the law of war.
THE LAW OF WAR
The law of war consists of four categories
1. Let enemy soldiers surrender.
2. Treat all captives and detainees humanely.
3. Don't use coercion in questioning captives and detainees.
4. Provide medical care for the sick and wounded captives.
5. Safeguard captives from the dangers of combat.
6. Don't take personal property from captives.
Civilians in the conflict have rights. Unnecessary destruction of property and inhumane treatment of civilians are violations of the law of war for which a soldier can be prosecuted. FM 27-2, at 20, November 1984. .
1. Don't violate civilians' rights in war zones.
2. Ensure the safety of civilians. It is lawful to move or resettle civilians if it is urgently required for military reasons, such as clearing a combat zone.
3. Don't burn or steal civilian property. Do not burn civilians' homes or property unless the necessities of war urgently require it. FM 27-2, November 1984.
Military Police have the authority to enforce the law of war. All military commanders and leaders, without regard to rank or position, have a duty to prevent criminal acts, including violations of the law of war, where U.S. troops are involved. FM 272, November 1984.
A violation of the law of war is a crime and is subject to punishment under U.S. law, which includes the Uniform Code of Military Justice (UCMJ). An order to commit a crime is illegal, and a soldier is obligated to disobey such an order which violates the common-sense rules of decency, social conduct, and morality. Orders to "take care of" captives or detainees (meaning to execute them) are unlawful and should not be obeyed. FM 27-2, November 1984.
Violations of the law of war should be reported through the chain of command; and if the crime involves an immediate superior, it should be reported to his superior. Violations of the law of war may also be reported by anyone to the inspector general, provost marshal, chaplain, or judge advocate. FM 27-2, November 1984. See also R.C.M., Rule 301(a).
INTENSITY OF CONFLICT MAY INFLUENCE APPLICABLE LAW
As a low intensity conflict makes a transition from a combat mode to more of a nation rebuilding or stabilization mode, the authority of Military Police to enforce laws and the jurisdiction of U.S. Military courts could change. In other words, on one-end of the continuum is the combat mode where Military Police authority to enforce laws stems from the chain of command, U.S. law, and the law of war. On the other end of the continuum is the post-combat mode where U.S. troops are occupying a host country; and the host country has jurisdiction over civilians and even U.S. military personnel who are accused of crimes committed not in the performance of official duty. DA Pam 360-544, at 12, October 1975.
Of course, the U.S. military retains the right and jurisdiction to try its service members for purely military offenses (R.C.M. Rule 201), and Military Police have the authority in low intensity conflicts to apprehend (or arrest) suspects (R.C.M. Rule 302).
Military Police may perform law and order functions to include interrogation of suspects, searches, seizures, inspections of and intrusions into bodies for the purpose of acquiring evidence for trials by courts-martial consistent with U.S. laws, the U.C.M.J. and whatever international agreements may have been implemented to govern U.S. armed forces actions. See generally, R.C.M., Mil. R. Evid., Sections III and IV. In the final analysis, the host nation will primarily be the enforcer of laws applicable to persons (military or civilian) within its territorial boundaries. Status of Forces Agreements, memoranda of understanding, or Treaties would be the other means by which U.S. Military Police would be granted authority to enforce host nation laws over the local civilian populace (e.g., Vietnam and Panama). To ultimately determine Military Police authority, each case must be analyzed individually.
OPERATION JUST CAUSE
Operation JUST CAUSE, U.S. incursion into Panama, revealed how well Military Police could function in this kind of a low intensity conflict. (See enclosure 4). Part of the overall objective in Operation JUST CAUSE was to neutralize General Manual Noriega's national police force. As Noriega's "police" were neutralized by U.S. forces, U.S. Military Police began to perform law and order missions because there were no local police to do the jobs. Ultimately, U.S. Military Police began to train the new Panamanian National Police who took over police tasks; and later the U.S. Military Police returned to the U.S.
The role of U.S. Military Police in Panama is a perfect example of the "intensity" of the conflict in the low intensity conflict influencing the legal authority of Military Police to enforce laws. First, the MPs were combat troops; then they as police helped to stabilize the country (anti-looting, traffic control, EPW missions); then they helped to establish and train a new host country police force; then they withdrew. Civil Affairs personnel also helped to stabilize the situation.
The applicable law in Panama--first, U.S. law, the law of war, and the U.C.M.J.; then the addition of local Panamanian law in conjunction with U.S. law and the law of war; lastly, Panamanian law and international agreement between Panama and the U.S. (Note: information presented regarding the training of the Panamanian police and the employment of civil affairs personnel was per telephone conversations with Colonel Larry Brede, Commander 16th MP Brigade, Lt. Colonel David Patton, Provost Marshal, Fort Bragg, and LTC Mike Peters, Commander, 96th Civil Affairs Battalion, on April 9, 1990).
NEW CHALLENGES
As "peace" breaks out all over the world, or so it seems, there are many political "hot spots" for low intensity conflicts to occur--Central America, Middle East, Europe; and there are many ways in which the LIC can occur--insurgency, terrorism, etc.
Terrorist situations and U.S. response outside the U.S. can present interesting legal situations. For example, if we are retaliating for a terrorist act, the principles relating to "self-defense" and the law of war are applicable. (See enclosure 2). If U.S. Military Police are involved in combating terrorism outside the U.S., the State Department has the primary responsibility for dealing with terrorists involving Americans abroad; but the host governments, in accordance with the status of Forces Agreements or Memoranda of Understanding, have primary responsibility for managing terrorist incidents. AR 525-13, para 5-2, 4 January 1988.
In CONUS installation commanders have the primary responsibility for the maintenance of law and order on military installations, and the FBI has primary law enforcement responsibility for terrorist incidents (AR 525-13, para 5-1, 4 January 1988).
Thus, our response to terrorism can be with a "military" emphasis or a "law enforcement" emphasis, depending on the situation; and as the game changes, so do the "rules" or laws.
The "drug war" has presented some interesting legal considerations for use of armed forces, including Military Police, abroad. One could just see the trend for the Military to act as an international policeman develop by reading the newspapers' headlines: "Pentagon given drug-war role", The Phoenix Gazette, September 18, 1989; "Military law enforcement outside U.S. is backed", The Arizona Republic, December .l7, 1989; "South Americans, U.S. ready to OK using military-in-drug war", The Arizona Republic, January 15, 1990; "Military Role still potent in Bush plan", The Arizona Republic (compiled from reports by Newsday, The Boston Globe and The Associated Press, January 28, 1990; "Planes, ships here will join fight on drugs", San Diego Tribune, March 9, 1990; "Pentagon plans to intensify war on drugs with balloons, ships", The Arizona Republic, March 10, 1990.
But along with this new mission for the military came some new legal issues. For example, U.S, law prohibited the use of funds to: "... provide training or advice, or provide any financial support, for police, prisons, or other law enforcement forces for any foreign government or any program of internal intelligence or surveillance on behalf of any foreign government within the Unites States or abroad ..." Sec. 660, Foreign Assistance Act, 22 U.S.C. 2420 (1961).
In order to support the military's role to help fight the "drug war", Congress passed the International Narcotics Control Act of 1989, 22 USC 2151 et seq.
The legislation's purpose is to assist Bolivia, Columbia, and Peru in controlling illicit narcotics production and trafficking. 22 USC 2291.
Law enforcement training to units or agencies to combat narcotics is authorized notwithstanding section 660 of the Foreign Assistance Act of 1961.
Thus, where there were restrictions before, there are now new missions for the U.S. military, including Military Police.
Even in the area of search and seizure there has been a new development which affects the authority of Military Police to search and seize property of a nonresident alien and located in a foreign country. The U.S. Supreme Court held that the Fourth Amendment to the U.S. Constitution does not apply. United States v. Rene Martin Verdugo-Uricruidez, 46 CrL 2136 (decided February 28, 1990).
The Court said inter alia:
"...The United States frequently employs armed forces outside this country--over 200 times in our history--for the protection of American citizens or national security... Application of the Fourth Amendment to these circumstance could. significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest..." 46 CrL at 2140.
The court also said: .
"...American interests may arise half way around the globe, situations which in the view of the-political branches of our government require an American response with armed -force. If there are to be restrictions on search and seizure which occur incident to such American action, they must be imposed by political branches through diplomatic understanding, treaty, or legislation..." 46 CrL at 2141.
Combined exercises of special operations forces who train extensively for their wartime missions with host country armed forces overseas highlight the problems regarding jurisdictional status over U.S. forces in a host country. Jurisdictional means the power of a court to try a case; and a peacetime arrangement may exist between the U.S. and host country that established this jurisdictional status. If no such agreement exists, then the judge advocate must secure one. After determining the negotiating authority for the Unified Command, the judge advocate must request though command channels that this authority conclude an agreement setting forth the jurisdictional status of U.S. forces with the host county. DA Pam 27-50-200, at 9 (August 1989).
A type of diplomatic immunity should be sought, but if the host country does not consent to complete civil and criminal immunity, the judge advocate or negotiating official should attempt to obtain a foreign criminal jurisdiction arrangement similar to that contained in the NATO SOFA. See generally Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Forces, June 19, 1951 , Art. VII, U.S.T. 1792; T.I.A.S. 2846; 199 U.N.T.S. 67.
Once the laws and rules are established as to which courts have jurisdiction and over whom, the U.S. Military Police can enforce the laws whether in a training exercise or a low intensity conflict.
Another area of controversy which could involve Military Police questions in a low intensity conflict relates to assassination. Executive Order 12,333 states that "[n)o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in assassination." See Exec. Order No. 12,333, 2.11, 3.C.F.R. 200, 213 (1982), reprinted in 50 U.S.C. app 3401 at 44, 50 (1982). Department of Army guidance does not prohibit an attack on individual soldiers or of the enemy wherever they may be located. DA Pam 27-50-200, at 8 (August.1989).
There have been reports in the media that the present U.S. administration wants to ease restrictions on assassinations.
"Washington--the Bush administration said Tuesday it is seeking an understanding with congress to ease restrictions on American involvement in foreign coups that might result in the death of a country leader.
White House spokesman Marlin Fitzwater said the proposed changes would not alter a longstanding executive order banning U.S. involvement in assassinations but-would allow the CIA to have contact with plotters of a coup in which a foreign leader might be killed...
The issue took on new urgency in the wake of a failed coup attempt against Panamanian ruler Manuel Antonio Noriega on Oct 3.
Administration officials complained that CIA officers were essentially prevented from advising the plotters because of the possibility that Noriega might be killed..." "Bush wants to ease restrictions on U.S. role in foreign coups." The Arizona Republic, October 18, 1989.
Unless there is a change in the law, Military Police operations are to be governed by Executive Order 12,333 prohibiting assassinations.
CONCLUSION
The Army will probably be involved in low intensity conflicts in the future. The justification for involvement in low intensity conflicts will vary, but usually it will relate to "self-defense" in the broadest meaning of the term.
Military Police have special training and special missions which make them ideal units to engage in the low intensity conflicts. Their authority to enforce laws over U.S. and foreign personnel, military and civilian, will depend on many variables: U.S. laws including the UCMJ, Treaties, SOFAs, other international agreements, laws of the host nation, the law of war, and the intensity of the low intensity conflict.
Restrictions on Military Police operations and ability to perform their law and order mission will stem from the aforementioned laws and combat conditions of the low intensity conflict.
Since the U.S. holds itself out to have respect for the law, it should comply with international principles of law to maintain its image of respect for law and order among the international community.
ENCLOSURE 2
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LOW INTENSITY CONFLICT
The Army of the future will probably be called upon to operate in low intensity conflicts which affect U.S. security or economic interests or those interests of our allies or others who request our assistance.
In the "final draft" dated January 1990 of the Doctrine for Joint Operations in Low Intensity Conflict, "low intensity conflict" is defined as:
"Political-military confrontation between contending states or groups below conventional war and above the routine, peaceful competition among states. It frequently involves protracted struggles of competing principles and ideologies. Low intensity conflict ranges from subversion to the use of armed force. It is waged by a combination of means employing political, economic, informational, and military instruments. Low intensity conflicts are often centralized, generally in the Third World, but contain regional and global security implications. Also called LIC." JCS Pub 3-07.
It is clear that the definition of "low intensity conflict" is quite broad and covers military actions of the U.S. such as Vietnam, Grenada, and Panama. It also probably covers the various wartime missions of U.S. special operations forces which include: foreign internal defense, unconventional warfare, strategic and tactical reconnaissance, strike operations; strategic and tactical psychological operations; civil affairs support of general-purpose forces; civil administration, and special light infantry. DA Pam 27-50-200, at 5, August 1989.
Because "civil affairs" and "civil administration" and implicitly "government" or "nation-rebuilding" are part of the mission, specially trained military-police should be plugged into the equation. In fact, the peacetime missions of special operations forces include: assisting foreign governments or other elements of the U.S. government; training, advising, and supporting foreign military and paramilitary forces through security assistance programs; supporting foreign internal defense operations; terrorism counteraction; conducting show of force operations; and conducting humanitarian operations. DA Pam 2750-200, at 5, August 1989. U.S. Military Police are tailor-made for the aforementioned missions.
The U.S. Army is well aware of the need to be prepared to act in low intensity conflict situations.
"International drug trafficking, terrorism, insurgency, and subversion of legitimate democratic regions will continue to pose serious threats to U.S. interests. These low intensity conflicts can undermine important allies and other friendly nations, impede the development of democratic institutions, and hamper essential U.S. economic and military ties. The dangers of low intensity conflict and particularly of terrorism, are magnified by the increasing worldwide availability of sophisticated explosives and weapons. Precision-guided munitions are becoming available through illegal arms markets and from states supporting international terrorist organizations. Terrorist use of the ultimate weapons of mass destruction--chemical, biological, and nuclear arms--is not inconceivable. Clearly, low intensity conflict is the security challenge most likely to demand a short-notice U.S. military response in the future." The United States Army Posture Statement FY 91 at I-6 to I-7.
"Low intensity conflict" describes an "environment" rather than a military capability or mission. The environment has four categories: insurgency/counterinsurgency, combating terrorism, peacekeeping, peacetime contingencies. JCS Pub 3-07. para 1-1.
The law relating to Military Police operations will depend on the environment, the intensity of the environment, and the legal/political relationship the U.S. has with the host country.
ENCLOSURE 3
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JUSTIFICATION FOR INTERVENTION IN LOW INTENSITY CONFLICTS
Justification for the U.S. to send troops into a low intensity conflict will vary with U.S. interests and the situation. For example, if American lives and property are
threatened in another country, the U.S. is justified in sending in troops (using force) under the principles of an inherent right of self-defense.
The use of force is also governed in international law by the U.N. Charter, which in article 2(4) obligates all members "to refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state." Use of force is allowed in certain circumstances. Article 51, United Nations Charter says that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
The definition of "armed attack" has been the subject of much debate by governments and scholars, but State-sponsored terrorism and other methods by which states can act through surrogates enables States to bring about attacks on their enemies while at the same time attempting to evade responsibility and legitimate retaliation. Terrorists do not always attack their victims in the victims' homeland thereby triggering the literal "armed attack... against a member of the United Nations" language.
In 1986, the International Court of Justice decided that Nicaragua had ,not engaged in "aggression" although the court either found or assumed that Nicaragua had supplied arms to the rebels in E1 Salvador for several years. The court found that a limited intervention of this sort cannot justify resort to self defense because customary law only allows the use of force in self-defense against an "armed attack", and an armed attack does not include "assistance to rebels in the form of the provision of weapons or logistical or other support." Military and paramilitary activities in and against Nicaragua, 1986 I.C.J. 14 (Judgement on the Merits of June 27, 1986) [hereinafter Nicaragua v. United States].
The I.C.J. left an opening for a state to respond to aggression short of an "armed attack". A state is not permitted to resort to "self-defense" against aggression short of armed attack, but it may be able to take what the court called "proportionate countermeasures". Nicaragua v. United States, 1986 I.C.J. at 127.
One scholar in international law advocates that a sound construction of article 51 of the U.N. Charter would allow any State, once a terrorist "attack occurs" or is about to occur, to use force against those responsible for the attack in order to prevent the attack or to deter further attacks unless reasonable ground exists to believe that no further attack will be undertaken." DA Pam 27-100-126, Vol. 126, at 95 (Fall 1989). The notion that self defense relates only to a use of force that materially threatens a state's "territorial integrity or political independence", as proscribed in article 2(4), ignores the Charter's preservation of the "inherent" aspect and scope of that right. Nations, including the U.S., have traditionally defended their military personnel, citizens, commerce, and property from attacks even though no threat existed to their territory or independence
When an American is attacked simply because he is an American in order to punish the U.S. or to coerce the U.S. into accepting a political position, the attack may be one in which the U.S. has sufficient interest to justify extending its protection through necessary and proportionate actions. No nation should be limited to using force to protect its citizens from attacks based on their citizenship to only situations in which they are within its national boundaries. DA Pam 27-100-126, Vol. 126, at 96 (Fall 1989).
The aforementioned international legal issues relate to the justification for U.S. intervention into a low intensity conflict situation. Depending on the circumstances, the U.S. would be justified in engaging in a LIC situation for its own "self-defense"; for the defense of an allied nation; for the defense of a nation who requested our assistance (e.g., Grenada); to honor a treaty (e.g., Vietnam), or other international agreement; to rescue hostages (e.g.,.Iran); to help stabilize or rebuild a government (e.g., Panama); to assist in disaster relief operations (e.g., Virgin Islands); or to neutralize drug trafficking (e.g., Latin America).
ENCLOSURE 4
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MILITARY POLICE CAPABILITIES IDEAL FOR LIC
Military Police provide a wide range of support to contribute to the Army's battlefield success: they combat enemy forces in a rear area; they expedite the forward movement of critical combat resources; they evacuate enemy prisoners of war (EPWs); they provide security to critical army facilities and resources; and they provide commanders and soldiers with police services as needed. FM 19-3, at 1-1 (December 1983). .
On the battlefield, Military Police operate as a flexible, economy-of-force organization; and they perform a wide range of support keyed to the commander's priorities. Organized in small tactical elements, they are equipped and trained to operate separately or in combination. MP three-man gun-jeep teams with their mobility, radio, communications, and M60 machine-gun fire power, are versatile units. They can respond quickly to emergencies. These same small teams, using their initiative and their ability to assemble quickly into larger units, can generate significant combat power for the tactical commander. FM 19-3, at 1-1 (December 1983).
With minor modifications of organization and equipment (e.g., the addition of wheeled armored vehicles and some anti-armor weapons) .Military Police can be the perfect type of combat unit for many low intensity conflicts.
With minor MP doctrine modification (which is presently primarily geared to the "Airland Battle" syndrome, the doctrine can easily be reoriented to LIC doctrine to have the Military Police units fight as infantry as they did frequently in Vietnam. The Military Police can perform their combat mission, but they also have their other capabilities (e.g., law enforcement, force protection, crowd and traffic control, etc.) for which they have been specifically trained:
Military Police missions--battlefield circulation control (helping to move military traffic along main supply routes expeditiously); area security (protecting designated facilities, units, convoys, MSR critical points, and personnel from enemy activity); enemy prisoner of war operations (controlling the flow of EPWs from their capture to their internment in POW camps; and law and order operations (providing police services such as investigating crimes, performing law enforcement operations, and confining U.S. military prisoners)--are tailor-made missions for the Army of the future involved in low intensity conflicts and nation rebuilding [See generally, FM 19-4, at 1-4, (May 1984)].
The Military Police law enforcement mission can be very important in the nation rebuilding phase of LIC. They can investigate criminal activity of military personnel; and depending on the circumstances and the legal relationship between U.S. Forces and the host country; MPs can deal with the local civilian populace. Military Police are especially trained to investigate crimes, to interview suspects, to apprehend (arrest), search and seize items of evidence for prosecution. (See generally FM 19-20, Law Enforcement Investigations, November 1985). They are trained to detect "black marketing" and to investigate war crimes. Military police have this special training valuable to LIC operations (e.g., Panama) which other branches of the Army simply do not have.
The U.S. armed forces in Panama temporarily performed "police" functions or aided host country police. "Vice President Ricardo Arias Calderon, who is also the justice minister, said 333 people were arrested during the sweep, which was launched at dawn. Arias said suspected drug dealers, illegal aliens and fugitives were taken to Federal Judicial Police headquarters, which was surrounded by U.S. armored cars. William Ormsbee, a spokesman for the U.S. Southern Command, said about 260 American soldiers were deployed in support of the Panamanian police. About 400 Panamanian law enforcement officers took part in the operations....The new administration of President Guillermo Endara has been shying away from establishing a military organization but has been slowly building a police force..." San Diego Tribune, March 9, 1990, at A-1. Military Police are the best ones to perform the missions described in the previous newspaper article.
Military Police deployed to Panama also performed in an outstanding manner in their "combat" role,. In a letter dated February 12, 1990, from the Provost Marshal of the 82nd Airborne Division to the Commander of the U.S. Army Military-Police Operations Agency, the PM commented on how well the Military Police performed their combat duties:
"... PANAMA VIEJO was a hot LZ and the military police fought to the objective alongside their infantry comrades. Once the fighting subsided and mass surrenders began, the MPs took charge of enemy prisoners of war and established security of captured arms and ammunition. As local security was established, the MPs assisted in manning roadblocks and checkpoints set up around each objective."
He further commented:
"While First Platoon was supporting brigade operations, the Second and Fourth Platoons began general support operations at the TORRIJOS-TOCUMEN Airfield complex. Fourth Platoon (the normal GS platoon) established the Division Central EPW Collecting Point and provided security for almost 400 displaced civilians who were caught in the international terminal during the airborne assault. Second Platoon assisted Fourth Platoon, while also providing direct support to the lst Battalion, 75th Ranger Regiment in the defense of the airport. Additionally, they participated in raids on suspected arms caches, counter-looting operations in nearby villages, and established a major checkpoint on the main supply route outside the airfield."
Commenting about a Military Police squad attached to one of 7th Infantry Division's battalions, the PM said:
"This squad participated in air assaults into two objectives-a Panama Defense Force training center and the E1 Renacer Prison. Additionally, they helped secure the Madden Dam, which controls the water level in all the locks on the Panama Canal. They also performed roadblocks and checkpoints, EPW processing, and various security missions. However, one mission at E1 Renacer Prisoner was unique. Because of their heavy firepower, a MP team was integrated into the assault element and used to clear rooms in the prison complex. This mission differed from the standard usage of MP's (sic) in the support element providing exterior security and preparing to assume control of any EPW."
The Provost Marshal also said that when the Military Police were supporting the clearing and stability operations in the city, they (MPs) helped clear the city, performed circulation control as civilian traffic begin to return to city streets, and served as law and order elements in the Division area of operations. The infantry brigades were ultimately relieved by combined 16 MP Brigade/Panamanian Police Force patrols, and the Division redeployed back to the U.S.
Operation JUST CAUSE is a recent and excellent example of how Military Police can perform in a low intensity conflict.
The Virgin Islands situation provided another relatively recent example of Military Police stabilizing a government. Although this action was on U.S. soil, U.S. troops could be deployed to a foreign country to help stabilize that government. A couple paragraphs reported in the Washington-Times-sums up the Military Police performance:
"In the Virgin Islands, however, it was another matter. The government there dithered for several days while the territory descended into anarchy, and there were persistent reports that his own police and National Guard were among the looters. With civilian control non-existent, the president decreed that once again, it was time to send in the cavalry. Until recently, it would have indeed been the cavalry--that is, combat forces pressed into riot-control duty. But this time the Army sent in more than 1,000 combat support men and women especially organized, trained and equipped for such duty..."
The article then listed all the various Military Police units deployed to the Virgin Islands and concluded:
"These professionals (Military Police) soon had the situation well in hand..."
"Today's cavalry to the rescue," by Harry Summers, Washington Times, at F-4, September 28, 1989.
Military police have a vital role in combating terrorism. The U.S. has numerous military installations outside the continental U.S., and it is the installation commander's responsibility to take appropriate measures to protect his installation--its facilities, equipment, and people. Crisis management teams, special reaction teams, hostage negotiation, investigation--these .are all activities which military police may be involved in to combat terrorism. (See generally, AR 525-13, 4 January 1988; AR 190-58, 22 March 1989; FM 100-37, July 1987; TC 19-16, April 1983).
Apr 1990
SUBJECT: Military Police Authority in Low Intensity Conflicts
1. Purpose: To determine authority and jurisdiction of Military Police to enforce law in low intensity conflicts.
2. Facts:
a. The Army of the future will probably be called upon to operate in low intensity conflicts which affect U.S. security or economic interests or those interests of our allies or others who request our assistance.
b. Justification for intervention in low intensity conflicts will vary with our interests and the situation (e.g., self-defense, defense of an allied nation or a nation who requests our assistance, to honor a treaty or other international agreement, to maintain security in a region, to fight terrorism, to rescue hostages, to help stabilize or rebuild a government, to assist in disaster relief operations, or to neutralize drug trafficking).
c. Military Police, because of their special training and capabilities (e.g., combat, law enforcement, crowd and traffic control, disaster relief, nation-rebuilding, and force protection), have shown their value; and future missions of the Army in low intensity conflicts will require Military Police units especially in the nation-rebuilding phase.
d. Control over the civilian populace and any restrictions will be governed by the laws of the U.S., Treaties or other international agreements, and/or the laws of the host nation depending on the situation.
e. Use of force, apprehension, search and seizure, and confinement and any restrictions will be governed by the laws of the U.S., Treaties or other international agreements, and/or the laws of the host nation depending on the situation.
f. Military police improperly performing law enforcement tasks may be liable for sanctions to be imposed under the laws of the U.S., Treaties or other international agreements, laws of the host nation or laws of another country who has the power to enforce its laws.
COL ABODEELY/54210
ENCLOSURE 1
~~~~~~~~~~~~
MILITARY POLICE AUTHORITY TO ENFORCE LAW AND RESTRICTIONS IN LOW INTENSITY CONFLICTS
In order to determine the "authority" of U.S. Military Police units to enforce laws in "low intensity conflicts", it is important to remember that the term "low intensity conflict" has a broad and varied meaning. (See enclosure 2). Historically, the U.S. has been involved in LIC operations such as in Vietnam, Grenada, and Panama. The future could see U.S. forces, including Military Police, involved in low intensity conflicts in Honduras, Nicaragua, El Salvador, Lebanon, Iraq, Iran, Israel, Federal Republic of Germany, or one of the other emerging "democracies" in Europe.
Low intensity conflict ranges from subversion to the use of armed force, and it is waged by a combination of means employing political, economic, informational, and military instruments.
Justification to use armed forces, including Military Police, can be found under principles of international law and the United Nations Charter, Article 51, which allows a member nation to engage in individual or collective self-defense against an armed attack. (See enclosure 3).
Assuming that the U.S. uses military forces in a low intensity conflict, it may do so under these conditions: (1) it is in self-defense; (2) it is necessary; and (3) it is proportionate to the threat defended against. [See enclosure 3 and DA Pam 27-100126, Vol. 126, at 96 (Fall 1989)].
Once the legal authority or justification for the use of U.S. armed forces (the military) in the low intensity conflict is established, the next question relates to the authority of Military Police to perform their missions during the LIC. The missions of Military Police are battlefield circulation control, area security, enemy prisoner of war operations, and law and order operations. (See enclosure 4).
The authority to perform these missions will stem from the law of the U.S., including the Uniform Code of Military Justice, treaties or other international agreements, and the laws of the host nation.
If the government of the nation in which the U.S. armed forces are deployed, is unable or unwilling to function, or if that government is to be suppressed by U.S. armed forces--then the U.S. military and the "law of war" will govern the conduct of Military Police operations. The "law of war" has evolved through the centuries, and many principles of conduct in combat and principles relating to the treatment of civilians and enemy prisoners of war (EPWs) have been modified in international treaties such as the Hague and Geneva Conventions and the Protocols to the Geneva Conventions. DA Pam 27-1, Treaties Governing Land Warfare, December 1956; DA Pam 27-1-1, Protocols to the Geneva Conventions of 12 August 1949, September 1979.
The law of war applies to U.S. military forces, including Military Police who may become involved in enforcing the law of war.
THE LAW OF WAR
The law of war consists of four categories
- Forbidden targets, treaties, and techniques
- Enemy captives and detainees
- Civilians and private property
- Prevention and reporting of unlawful acts and orders. FM 27-1, Your Conduct in Combat Under the Law of War, November 1984.BASIC RULES
- Don't attack noncombatants.
- Don't shoot at a parachute unless it holds a combatant.
- Don't shoot at the Red Cross or hide behind medical service symbols.
- Don't cause destruction beyond the requirement of your mission.
- Don't attack protected property.
- Don't use poison or alter your weapon to increase enemy suffering.
1. Let enemy soldiers surrender.
2. Treat all captives and detainees humanely.
3. Don't use coercion in questioning captives and detainees.
4. Provide medical care for the sick and wounded captives.
5. Safeguard captives from the dangers of combat.
6. Don't take personal property from captives.
Civilians in the conflict have rights. Unnecessary destruction of property and inhumane treatment of civilians are violations of the law of war for which a soldier can be prosecuted. FM 27-2, at 20, November 1984. .
1. Don't violate civilians' rights in war zones.
2. Ensure the safety of civilians. It is lawful to move or resettle civilians if it is urgently required for military reasons, such as clearing a combat zone.
3. Don't burn or steal civilian property. Do not burn civilians' homes or property unless the necessities of war urgently require it. FM 27-2, November 1984.
Military Police have the authority to enforce the law of war. All military commanders and leaders, without regard to rank or position, have a duty to prevent criminal acts, including violations of the law of war, where U.S. troops are involved. FM 272, November 1984.
A violation of the law of war is a crime and is subject to punishment under U.S. law, which includes the Uniform Code of Military Justice (UCMJ). An order to commit a crime is illegal, and a soldier is obligated to disobey such an order which violates the common-sense rules of decency, social conduct, and morality. Orders to "take care of" captives or detainees (meaning to execute them) are unlawful and should not be obeyed. FM 27-2, November 1984.
Violations of the law of war should be reported through the chain of command; and if the crime involves an immediate superior, it should be reported to his superior. Violations of the law of war may also be reported by anyone to the inspector general, provost marshal, chaplain, or judge advocate. FM 27-2, November 1984. See also R.C.M., Rule 301(a).
INTENSITY OF CONFLICT MAY INFLUENCE APPLICABLE LAW
As a low intensity conflict makes a transition from a combat mode to more of a nation rebuilding or stabilization mode, the authority of Military Police to enforce laws and the jurisdiction of U.S. Military courts could change. In other words, on one-end of the continuum is the combat mode where Military Police authority to enforce laws stems from the chain of command, U.S. law, and the law of war. On the other end of the continuum is the post-combat mode where U.S. troops are occupying a host country; and the host country has jurisdiction over civilians and even U.S. military personnel who are accused of crimes committed not in the performance of official duty. DA Pam 360-544, at 12, October 1975.
Of course, the U.S. military retains the right and jurisdiction to try its service members for purely military offenses (R.C.M. Rule 201), and Military Police have the authority in low intensity conflicts to apprehend (or arrest) suspects (R.C.M. Rule 302).
Military Police may perform law and order functions to include interrogation of suspects, searches, seizures, inspections of and intrusions into bodies for the purpose of acquiring evidence for trials by courts-martial consistent with U.S. laws, the U.C.M.J. and whatever international agreements may have been implemented to govern U.S. armed forces actions. See generally, R.C.M., Mil. R. Evid., Sections III and IV. In the final analysis, the host nation will primarily be the enforcer of laws applicable to persons (military or civilian) within its territorial boundaries. Status of Forces Agreements, memoranda of understanding, or Treaties would be the other means by which U.S. Military Police would be granted authority to enforce host nation laws over the local civilian populace (e.g., Vietnam and Panama). To ultimately determine Military Police authority, each case must be analyzed individually.
OPERATION JUST CAUSE
Operation JUST CAUSE, U.S. incursion into Panama, revealed how well Military Police could function in this kind of a low intensity conflict. (See enclosure 4). Part of the overall objective in Operation JUST CAUSE was to neutralize General Manual Noriega's national police force. As Noriega's "police" were neutralized by U.S. forces, U.S. Military Police began to perform law and order missions because there were no local police to do the jobs. Ultimately, U.S. Military Police began to train the new Panamanian National Police who took over police tasks; and later the U.S. Military Police returned to the U.S.
The role of U.S. Military Police in Panama is a perfect example of the "intensity" of the conflict in the low intensity conflict influencing the legal authority of Military Police to enforce laws. First, the MPs were combat troops; then they as police helped to stabilize the country (anti-looting, traffic control, EPW missions); then they helped to establish and train a new host country police force; then they withdrew. Civil Affairs personnel also helped to stabilize the situation.
The applicable law in Panama--first, U.S. law, the law of war, and the U.C.M.J.; then the addition of local Panamanian law in conjunction with U.S. law and the law of war; lastly, Panamanian law and international agreement between Panama and the U.S. (Note: information presented regarding the training of the Panamanian police and the employment of civil affairs personnel was per telephone conversations with Colonel Larry Brede, Commander 16th MP Brigade, Lt. Colonel David Patton, Provost Marshal, Fort Bragg, and LTC Mike Peters, Commander, 96th Civil Affairs Battalion, on April 9, 1990).
NEW CHALLENGES
As "peace" breaks out all over the world, or so it seems, there are many political "hot spots" for low intensity conflicts to occur--Central America, Middle East, Europe; and there are many ways in which the LIC can occur--insurgency, terrorism, etc.
Terrorist situations and U.S. response outside the U.S. can present interesting legal situations. For example, if we are retaliating for a terrorist act, the principles relating to "self-defense" and the law of war are applicable. (See enclosure 2). If U.S. Military Police are involved in combating terrorism outside the U.S., the State Department has the primary responsibility for dealing with terrorists involving Americans abroad; but the host governments, in accordance with the status of Forces Agreements or Memoranda of Understanding, have primary responsibility for managing terrorist incidents. AR 525-13, para 5-2, 4 January 1988.
In CONUS installation commanders have the primary responsibility for the maintenance of law and order on military installations, and the FBI has primary law enforcement responsibility for terrorist incidents (AR 525-13, para 5-1, 4 January 1988).
Thus, our response to terrorism can be with a "military" emphasis or a "law enforcement" emphasis, depending on the situation; and as the game changes, so do the "rules" or laws.
The "drug war" has presented some interesting legal considerations for use of armed forces, including Military Police, abroad. One could just see the trend for the Military to act as an international policeman develop by reading the newspapers' headlines: "Pentagon given drug-war role", The Phoenix Gazette, September 18, 1989; "Military law enforcement outside U.S. is backed", The Arizona Republic, December .l7, 1989; "South Americans, U.S. ready to OK using military-in-drug war", The Arizona Republic, January 15, 1990; "Military Role still potent in Bush plan", The Arizona Republic (compiled from reports by Newsday, The Boston Globe and The Associated Press, January 28, 1990; "Planes, ships here will join fight on drugs", San Diego Tribune, March 9, 1990; "Pentagon plans to intensify war on drugs with balloons, ships", The Arizona Republic, March 10, 1990.
But along with this new mission for the military came some new legal issues. For example, U.S, law prohibited the use of funds to: "... provide training or advice, or provide any financial support, for police, prisons, or other law enforcement forces for any foreign government or any program of internal intelligence or surveillance on behalf of any foreign government within the Unites States or abroad ..." Sec. 660, Foreign Assistance Act, 22 U.S.C. 2420 (1961).
In order to support the military's role to help fight the "drug war", Congress passed the International Narcotics Control Act of 1989, 22 USC 2151 et seq.
The legislation's purpose is to assist Bolivia, Columbia, and Peru in controlling illicit narcotics production and trafficking. 22 USC 2291.
Law enforcement training to units or agencies to combat narcotics is authorized notwithstanding section 660 of the Foreign Assistance Act of 1961.
Thus, where there were restrictions before, there are now new missions for the U.S. military, including Military Police.
Even in the area of search and seizure there has been a new development which affects the authority of Military Police to search and seize property of a nonresident alien and located in a foreign country. The U.S. Supreme Court held that the Fourth Amendment to the U.S. Constitution does not apply. United States v. Rene Martin Verdugo-Uricruidez, 46 CrL 2136 (decided February 28, 1990).
The Court said inter alia:
"...The United States frequently employs armed forces outside this country--over 200 times in our history--for the protection of American citizens or national security... Application of the Fourth Amendment to these circumstance could. significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest..." 46 CrL at 2140.
The court also said: .
"...American interests may arise half way around the globe, situations which in the view of the-political branches of our government require an American response with armed -force. If there are to be restrictions on search and seizure which occur incident to such American action, they must be imposed by political branches through diplomatic understanding, treaty, or legislation..." 46 CrL at 2141.
Combined exercises of special operations forces who train extensively for their wartime missions with host country armed forces overseas highlight the problems regarding jurisdictional status over U.S. forces in a host country. Jurisdictional means the power of a court to try a case; and a peacetime arrangement may exist between the U.S. and host country that established this jurisdictional status. If no such agreement exists, then the judge advocate must secure one. After determining the negotiating authority for the Unified Command, the judge advocate must request though command channels that this authority conclude an agreement setting forth the jurisdictional status of U.S. forces with the host county. DA Pam 27-50-200, at 9 (August 1989).
A type of diplomatic immunity should be sought, but if the host country does not consent to complete civil and criminal immunity, the judge advocate or negotiating official should attempt to obtain a foreign criminal jurisdiction arrangement similar to that contained in the NATO SOFA. See generally Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Forces, June 19, 1951 , Art. VII, U.S.T. 1792; T.I.A.S. 2846; 199 U.N.T.S. 67.
Once the laws and rules are established as to which courts have jurisdiction and over whom, the U.S. Military Police can enforce the laws whether in a training exercise or a low intensity conflict.
Another area of controversy which could involve Military Police questions in a low intensity conflict relates to assassination. Executive Order 12,333 states that "[n)o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in assassination." See Exec. Order No. 12,333, 2.11, 3.C.F.R. 200, 213 (1982), reprinted in 50 U.S.C. app 3401 at 44, 50 (1982). Department of Army guidance does not prohibit an attack on individual soldiers or of the enemy wherever they may be located. DA Pam 27-50-200, at 8 (August.1989).
There have been reports in the media that the present U.S. administration wants to ease restrictions on assassinations.
"Washington--the Bush administration said Tuesday it is seeking an understanding with congress to ease restrictions on American involvement in foreign coups that might result in the death of a country leader.
White House spokesman Marlin Fitzwater said the proposed changes would not alter a longstanding executive order banning U.S. involvement in assassinations but-would allow the CIA to have contact with plotters of a coup in which a foreign leader might be killed...
The issue took on new urgency in the wake of a failed coup attempt against Panamanian ruler Manuel Antonio Noriega on Oct 3.
Administration officials complained that CIA officers were essentially prevented from advising the plotters because of the possibility that Noriega might be killed..." "Bush wants to ease restrictions on U.S. role in foreign coups." The Arizona Republic, October 18, 1989.
Unless there is a change in the law, Military Police operations are to be governed by Executive Order 12,333 prohibiting assassinations.
CONCLUSION
The Army will probably be involved in low intensity conflicts in the future. The justification for involvement in low intensity conflicts will vary, but usually it will relate to "self-defense" in the broadest meaning of the term.
Military Police have special training and special missions which make them ideal units to engage in the low intensity conflicts. Their authority to enforce laws over U.S. and foreign personnel, military and civilian, will depend on many variables: U.S. laws including the UCMJ, Treaties, SOFAs, other international agreements, laws of the host nation, the law of war, and the intensity of the low intensity conflict.
Restrictions on Military Police operations and ability to perform their law and order mission will stem from the aforementioned laws and combat conditions of the low intensity conflict.
Since the U.S. holds itself out to have respect for the law, it should comply with international principles of law to maintain its image of respect for law and order among the international community.
ENCLOSURE 2
~~~~~~~~~~~~
LOW INTENSITY CONFLICT
The Army of the future will probably be called upon to operate in low intensity conflicts which affect U.S. security or economic interests or those interests of our allies or others who request our assistance.
In the "final draft" dated January 1990 of the Doctrine for Joint Operations in Low Intensity Conflict, "low intensity conflict" is defined as:
"Political-military confrontation between contending states or groups below conventional war and above the routine, peaceful competition among states. It frequently involves protracted struggles of competing principles and ideologies. Low intensity conflict ranges from subversion to the use of armed force. It is waged by a combination of means employing political, economic, informational, and military instruments. Low intensity conflicts are often centralized, generally in the Third World, but contain regional and global security implications. Also called LIC." JCS Pub 3-07.
It is clear that the definition of "low intensity conflict" is quite broad and covers military actions of the U.S. such as Vietnam, Grenada, and Panama. It also probably covers the various wartime missions of U.S. special operations forces which include: foreign internal defense, unconventional warfare, strategic and tactical reconnaissance, strike operations; strategic and tactical psychological operations; civil affairs support of general-purpose forces; civil administration, and special light infantry. DA Pam 27-50-200, at 5, August 1989.
Because "civil affairs" and "civil administration" and implicitly "government" or "nation-rebuilding" are part of the mission, specially trained military-police should be plugged into the equation. In fact, the peacetime missions of special operations forces include: assisting foreign governments or other elements of the U.S. government; training, advising, and supporting foreign military and paramilitary forces through security assistance programs; supporting foreign internal defense operations; terrorism counteraction; conducting show of force operations; and conducting humanitarian operations. DA Pam 2750-200, at 5, August 1989. U.S. Military Police are tailor-made for the aforementioned missions.
The U.S. Army is well aware of the need to be prepared to act in low intensity conflict situations.
"International drug trafficking, terrorism, insurgency, and subversion of legitimate democratic regions will continue to pose serious threats to U.S. interests. These low intensity conflicts can undermine important allies and other friendly nations, impede the development of democratic institutions, and hamper essential U.S. economic and military ties. The dangers of low intensity conflict and particularly of terrorism, are magnified by the increasing worldwide availability of sophisticated explosives and weapons. Precision-guided munitions are becoming available through illegal arms markets and from states supporting international terrorist organizations. Terrorist use of the ultimate weapons of mass destruction--chemical, biological, and nuclear arms--is not inconceivable. Clearly, low intensity conflict is the security challenge most likely to demand a short-notice U.S. military response in the future." The United States Army Posture Statement FY 91 at I-6 to I-7.
"Low intensity conflict" describes an "environment" rather than a military capability or mission. The environment has four categories: insurgency/counterinsurgency, combating terrorism, peacekeeping, peacetime contingencies. JCS Pub 3-07. para 1-1.
The law relating to Military Police operations will depend on the environment, the intensity of the environment, and the legal/political relationship the U.S. has with the host country.
ENCLOSURE 3
~~~~~~~~~~~~
JUSTIFICATION FOR INTERVENTION IN LOW INTENSITY CONFLICTS
Justification for the U.S. to send troops into a low intensity conflict will vary with U.S. interests and the situation. For example, if American lives and property are
threatened in another country, the U.S. is justified in sending in troops (using force) under the principles of an inherent right of self-defense.
The use of force is also governed in international law by the U.N. Charter, which in article 2(4) obligates all members "to refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state." Use of force is allowed in certain circumstances. Article 51, United Nations Charter says that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
The definition of "armed attack" has been the subject of much debate by governments and scholars, but State-sponsored terrorism and other methods by which states can act through surrogates enables States to bring about attacks on their enemies while at the same time attempting to evade responsibility and legitimate retaliation. Terrorists do not always attack their victims in the victims' homeland thereby triggering the literal "armed attack... against a member of the United Nations" language.
In 1986, the International Court of Justice decided that Nicaragua had ,not engaged in "aggression" although the court either found or assumed that Nicaragua had supplied arms to the rebels in E1 Salvador for several years. The court found that a limited intervention of this sort cannot justify resort to self defense because customary law only allows the use of force in self-defense against an "armed attack", and an armed attack does not include "assistance to rebels in the form of the provision of weapons or logistical or other support." Military and paramilitary activities in and against Nicaragua, 1986 I.C.J. 14 (Judgement on the Merits of June 27, 1986) [hereinafter Nicaragua v. United States].
The I.C.J. left an opening for a state to respond to aggression short of an "armed attack". A state is not permitted to resort to "self-defense" against aggression short of armed attack, but it may be able to take what the court called "proportionate countermeasures". Nicaragua v. United States, 1986 I.C.J. at 127.
One scholar in international law advocates that a sound construction of article 51 of the U.N. Charter would allow any State, once a terrorist "attack occurs" or is about to occur, to use force against those responsible for the attack in order to prevent the attack or to deter further attacks unless reasonable ground exists to believe that no further attack will be undertaken." DA Pam 27-100-126, Vol. 126, at 95 (Fall 1989). The notion that self defense relates only to a use of force that materially threatens a state's "territorial integrity or political independence", as proscribed in article 2(4), ignores the Charter's preservation of the "inherent" aspect and scope of that right. Nations, including the U.S., have traditionally defended their military personnel, citizens, commerce, and property from attacks even though no threat existed to their territory or independence
When an American is attacked simply because he is an American in order to punish the U.S. or to coerce the U.S. into accepting a political position, the attack may be one in which the U.S. has sufficient interest to justify extending its protection through necessary and proportionate actions. No nation should be limited to using force to protect its citizens from attacks based on their citizenship to only situations in which they are within its national boundaries. DA Pam 27-100-126, Vol. 126, at 96 (Fall 1989).
The aforementioned international legal issues relate to the justification for U.S. intervention into a low intensity conflict situation. Depending on the circumstances, the U.S. would be justified in engaging in a LIC situation for its own "self-defense"; for the defense of an allied nation; for the defense of a nation who requested our assistance (e.g., Grenada); to honor a treaty (e.g., Vietnam), or other international agreement; to rescue hostages (e.g.,.Iran); to help stabilize or rebuild a government (e.g., Panama); to assist in disaster relief operations (e.g., Virgin Islands); or to neutralize drug trafficking (e.g., Latin America).
ENCLOSURE 4
~~~~~~~~~~~~~
MILITARY POLICE CAPABILITIES IDEAL FOR LIC
Military Police provide a wide range of support to contribute to the Army's battlefield success: they combat enemy forces in a rear area; they expedite the forward movement of critical combat resources; they evacuate enemy prisoners of war (EPWs); they provide security to critical army facilities and resources; and they provide commanders and soldiers with police services as needed. FM 19-3, at 1-1 (December 1983). .
On the battlefield, Military Police operate as a flexible, economy-of-force organization; and they perform a wide range of support keyed to the commander's priorities. Organized in small tactical elements, they are equipped and trained to operate separately or in combination. MP three-man gun-jeep teams with their mobility, radio, communications, and M60 machine-gun fire power, are versatile units. They can respond quickly to emergencies. These same small teams, using their initiative and their ability to assemble quickly into larger units, can generate significant combat power for the tactical commander. FM 19-3, at 1-1 (December 1983).
With minor modifications of organization and equipment (e.g., the addition of wheeled armored vehicles and some anti-armor weapons) .Military Police can be the perfect type of combat unit for many low intensity conflicts.
With minor MP doctrine modification (which is presently primarily geared to the "Airland Battle" syndrome, the doctrine can easily be reoriented to LIC doctrine to have the Military Police units fight as infantry as they did frequently in Vietnam. The Military Police can perform their combat mission, but they also have their other capabilities (e.g., law enforcement, force protection, crowd and traffic control, etc.) for which they have been specifically trained:
Military Police missions--battlefield circulation control (helping to move military traffic along main supply routes expeditiously); area security (protecting designated facilities, units, convoys, MSR critical points, and personnel from enemy activity); enemy prisoner of war operations (controlling the flow of EPWs from their capture to their internment in POW camps; and law and order operations (providing police services such as investigating crimes, performing law enforcement operations, and confining U.S. military prisoners)--are tailor-made missions for the Army of the future involved in low intensity conflicts and nation rebuilding [See generally, FM 19-4, at 1-4, (May 1984)].
The Military Police law enforcement mission can be very important in the nation rebuilding phase of LIC. They can investigate criminal activity of military personnel; and depending on the circumstances and the legal relationship between U.S. Forces and the host country; MPs can deal with the local civilian populace. Military Police are especially trained to investigate crimes, to interview suspects, to apprehend (arrest), search and seize items of evidence for prosecution. (See generally FM 19-20, Law Enforcement Investigations, November 1985). They are trained to detect "black marketing" and to investigate war crimes. Military police have this special training valuable to LIC operations (e.g., Panama) which other branches of the Army simply do not have.
The U.S. armed forces in Panama temporarily performed "police" functions or aided host country police. "Vice President Ricardo Arias Calderon, who is also the justice minister, said 333 people were arrested during the sweep, which was launched at dawn. Arias said suspected drug dealers, illegal aliens and fugitives were taken to Federal Judicial Police headquarters, which was surrounded by U.S. armored cars. William Ormsbee, a spokesman for the U.S. Southern Command, said about 260 American soldiers were deployed in support of the Panamanian police. About 400 Panamanian law enforcement officers took part in the operations....The new administration of President Guillermo Endara has been shying away from establishing a military organization but has been slowly building a police force..." San Diego Tribune, March 9, 1990, at A-1. Military Police are the best ones to perform the missions described in the previous newspaper article.
Military Police deployed to Panama also performed in an outstanding manner in their "combat" role,. In a letter dated February 12, 1990, from the Provost Marshal of the 82nd Airborne Division to the Commander of the U.S. Army Military-Police Operations Agency, the PM commented on how well the Military Police performed their combat duties:
"... PANAMA VIEJO was a hot LZ and the military police fought to the objective alongside their infantry comrades. Once the fighting subsided and mass surrenders began, the MPs took charge of enemy prisoners of war and established security of captured arms and ammunition. As local security was established, the MPs assisted in manning roadblocks and checkpoints set up around each objective."
He further commented:
"While First Platoon was supporting brigade operations, the Second and Fourth Platoons began general support operations at the TORRIJOS-TOCUMEN Airfield complex. Fourth Platoon (the normal GS platoon) established the Division Central EPW Collecting Point and provided security for almost 400 displaced civilians who were caught in the international terminal during the airborne assault. Second Platoon assisted Fourth Platoon, while also providing direct support to the lst Battalion, 75th Ranger Regiment in the defense of the airport. Additionally, they participated in raids on suspected arms caches, counter-looting operations in nearby villages, and established a major checkpoint on the main supply route outside the airfield."
Commenting about a Military Police squad attached to one of 7th Infantry Division's battalions, the PM said:
"This squad participated in air assaults into two objectives-a Panama Defense Force training center and the E1 Renacer Prison. Additionally, they helped secure the Madden Dam, which controls the water level in all the locks on the Panama Canal. They also performed roadblocks and checkpoints, EPW processing, and various security missions. However, one mission at E1 Renacer Prisoner was unique. Because of their heavy firepower, a MP team was integrated into the assault element and used to clear rooms in the prison complex. This mission differed from the standard usage of MP's (sic) in the support element providing exterior security and preparing to assume control of any EPW."
The Provost Marshal also said that when the Military Police were supporting the clearing and stability operations in the city, they (MPs) helped clear the city, performed circulation control as civilian traffic begin to return to city streets, and served as law and order elements in the Division area of operations. The infantry brigades were ultimately relieved by combined 16 MP Brigade/Panamanian Police Force patrols, and the Division redeployed back to the U.S.
Operation JUST CAUSE is a recent and excellent example of how Military Police can perform in a low intensity conflict.
The Virgin Islands situation provided another relatively recent example of Military Police stabilizing a government. Although this action was on U.S. soil, U.S. troops could be deployed to a foreign country to help stabilize that government. A couple paragraphs reported in the Washington-Times-sums up the Military Police performance:
"In the Virgin Islands, however, it was another matter. The government there dithered for several days while the territory descended into anarchy, and there were persistent reports that his own police and National Guard were among the looters. With civilian control non-existent, the president decreed that once again, it was time to send in the cavalry. Until recently, it would have indeed been the cavalry--that is, combat forces pressed into riot-control duty. But this time the Army sent in more than 1,000 combat support men and women especially organized, trained and equipped for such duty..."
The article then listed all the various Military Police units deployed to the Virgin Islands and concluded:
"These professionals (Military Police) soon had the situation well in hand..."
"Today's cavalry to the rescue," by Harry Summers, Washington Times, at F-4, September 28, 1989.
Military police have a vital role in combating terrorism. The U.S. has numerous military installations outside the continental U.S., and it is the installation commander's responsibility to take appropriate measures to protect his installation--its facilities, equipment, and people. Crisis management teams, special reaction teams, hostage negotiation, investigation--these .are all activities which military police may be involved in to combat terrorism. (See generally, AR 525-13, 4 January 1988; AR 190-58, 22 March 1989; FM 100-37, July 1987; TC 19-16, April 1983).
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