PRINCIPLES OF INTERNATIONAL LAW

 DEFENDING THE ACCUSED IN A HOSTILE ENVIRONMENT

LOW INTENSITY CONFLICTS (Information Paper)

WE HAVE A CONSTITUTIONAL CRISIS

COLLECTIVE SECURITY

PATRIOTISM_AND_OTHER_ISSUES

LEGALITY OF THE VIETNAM WAR

WARFARE IS GOVERNED BY INTERNATIONAL LAW

The law of war is derived from two principle sources—(1) Lawmaking Treaties (or Conventions) such as The Hague and Geneva Conventions and (2) custom, which is a body of unwritten or customary law firmly established by the custom of nations and well defined by recognized authorities on international law. (See FM 27-10, The Law of Land Warfare, Department of the Army, Washington, GPO, p. 4, July 1956).

The following are examples of the body of international law relied upon by the United Nations, commissions, tribunals, and diplomats in addressing international issues and disputes:

The Charter of the United Nations;

The Universal Declaration of Human Rights, of 10 December 1948;

The International Covenant on Civil and Political Rights, of 16 December 1966;

The United Nations often relies on those resolutions relevant to the situation of civilians in occupied territories adopted by United Nations organs—the General Assembly, the Security Council, the Economic and Social Council and the Commission on Human Rights—in making decisions.

Treaties (or Conventions) to which the United States is a party are legally binding.

The President can make treaties.

The President has a duty to honor the terms of treaties to which the U.S. is a party, and he is obligated to enforce them because they are the supreme law of the land.

"(H)e (President) shall take care that the Laws be faithfully executed…". (U.S. Constitution, Article II, Section 3).

The Geneva Conventions of 1949 for the Protection of War Victims and the Hague Convention No. IV of 1907 Respecting the Laws and Customs of War on Land were intended to be, and are, legally binding on the United States and its citizens, especially members of the armed forces. (See AR 350-216, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, Department of the Army, Washington, GPO, 7 March 1975).

The Fourth Geneva Convention requires the parties to:

The Geneva Conventions have some specific provisions relating to bombardments:

"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." (See FM 27-10, The Law of Land Warfare, Department of the Army, Washington, GPO, p. 19, July 1956).

The Conventions further prohibit unnecessary killing and devastation:

The Hague Convention of 1907 also specifically deals with the delivery of munitions from aerial platforms:

Protocol I to the Geneva Conventions of 12 August 1949 relating to the protection of victims of international armed conflicts prohibits indiscriminate attacks on the enemy civilian populace.

"Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;

(c) those which cannot be limited as required by this Protocol;

The Protocol further states what may have the most direct application to consider of the United States’ aerial bombardment of Iraqi civilians in populated cities:

"Among others, the following types of attacks are to be considered as indiscriminate:

The Law of War and the provisions of these Conventions are applicable to U.S. armed forces’ actions in Afghanistan and Iraq and anywhere else the U.S. engages in military action. These same principles of international law are applicable to the Israeli Defense Forces’ actions against the Palestinians. Suicide bombings by the Palestinian "terrorists" do not justify Israeli mass reprisals or indiscriminate attacks (acts of terrorism) by the use of helicopters, jets, or tanks on innocent civilians in the occupied territories under principles of international law.

BASIC U.N. PRINCIPLES AND PROCEDURES

World War II ended in 1945. In the same year, the governments of the world met to create a Charter for the United Nations. The "purposes and principles" as stated in the Charter were:

The United States is a member of the United Nations and is bound by the terms of its Charter. The UN Charter gives the Security Council primary responsibility for maintaining international peace and security. The Security Council, alone, has the power to back up its declarations with actions to ensure compliance with them. No one nation can tell the Security Council what to do, including the United States. Operation Iraqi Freedom was illegal, in part, because it lacked Security Council approval.

Article 41 provides:

Article 42 provides:

Thus, other than for self-defense, a nation may use armed force against another nation only with the concurrence of the Security Council. Five of the Council’s members are designated permanent members— the US, Russia, Britain, France, and China. The other ten members are elected by the General Assembly for two- year terms. For a resolution to pass, it must receive nine "yes" votes with five of them being unanimous votes from the five permanent members.

THE BASIC RIGHT OF SELF DEFENSE

Article 51, UN Charter says:

TERRORISM

Terrorism has been defined as the calculated use of violence or the threat of violence to attain political, religious, or ideological goals by instilling fear or using intimidation or coercion. TC 19-16, Countering Terrorism On US Army Installations (April 1993). AR 190-52.

International terrorism involves violent acts or acts dangerous to human life that violate US federal or state law if they would have been committed in the US and appear to be intended to coerce a civilian population or to influence the policy of a government by intimidation or coercion or to affect the conduct of the government by mass destruction, assassination, or kidnapping and occur primarily outside the US or transcend the US boundaries by the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. (Emphasis added). 18 USC § 2331 (1)(A)(B)(C).

Domestic terrorism involves acts dangerous to human life that violate US federal or state law and appear to be intended to coerce a civilian population or to influence the policy of a government by intimidation or coercion or to affect the conduct of the government by mass destruction, assassination, or kidnapping and occur primarily within the territorial jurisdiction of the United States. (Emphasis added). 18 USC § 2331 (5)(A)(B)(C).

Terrorism is a crime under US domestic law. A crime requires criminal intent; therefore, what does the terrorism statute mean when it prohibits acts which "appear to be intended" to do certain things? Mens rea (or guilty mind) is a prerequisite for the commission of a crime. Due process requires that the other trappings of a criminal justice system (e.g., right to be informed of charges against the accused, right to counsel, right to bond, right to a speedy trial, right to trial, presumption of innocence, requirement for proof beyond a reasonable doubt before conviction and punishment, etc.) also apply to "terrorists".

The U.S. used the "war on terror" as an excuse to violate many person’s rights, especially if they were Arab or Muslim (e.g., the hundreds of arrests and incarcerations of individuals for minor visa related violations). On October 26, 2001, President Bush signed the USA Patriot Act (USAPA) into law which gave sweeping new powers to both domestic law enforcement and international intelligence agencies and eliminated checks and balances that courts previously had to prevent abuses. The law makes it easier to conduct electronic surveillance on citizens without "probable cause" to believe a crime has been or is being committed. "Terrorism" is defined more broadly to probably include legitimate protest marches which may result in someone being injured. The proposed USAPA II includes the term "enemy combatant" to mean a citizen who may have violated the new broader definition of terrorism under USAPA I. "Enemy combatants" could be held without the normal constitutional rights a criminal defendant would have, and they could be tried before military tribunals.

The U.S. also used the "war on terror" as an excuse to invade two sovereign foreign countries—Afghanistan and Iraq--in violation of international law and to treat captured Afghanis and occupied Iraqis in an inhumane manner. The United States had no more legal authority to invade Iraq than it did to invade Afghanistan under the pretense of fighting "terrorism". (See, generally, "U.S. Bombing of Afghanistan Not Justified As Self-Defense Under International Law" by Leslie M. Rose, Guild Practioner, January 2002). The U.S. occupation of Iraq and the reprisals against Iraqi citizens in the name of "security" also violate international law. It is obvious that the tons of weapons of mass destruction alleged to exist in Iraq immediately before the U.S. led invasion simply did not exist as stated by the U.S. administration. Whether or not WMD are found, the U.S. invaded Iraq for no legitimate reason under international law.

Israel has maintained its "security" in the "war on terror" by using rockets, tank rounds, or bombs to kill innocent Palestinian civilians (men, women, and children)—as much an act of terror as the act of the individual who detonates explosives in a crowded Israeli gathering of innocent people. I believe that "security" should never be used as an excuse to violate the principles of freedom stemming from the U.S. Constitution and the principles of human rights embodied in international law.

UN RESOLUTION 687 IMPOSED SANCTIONS ON IRAQ

The UN imposed sanctions on Iraq, after Desert Storm, through UN resolutions. Resolution 687 (November 29, 1990) established cease-fire terms and set up the UN Special Commission (UNSCOM) to disarm Iraq, and it listed specific conditions for lifting sanctions. Under paragraph 8, Iraq was to destroy, remove, or render harmless, under international supervision, all chemical and biological weapons and all stocks of agents and related subsystems and components and all research, development, support and manufacturing facilities. Iraq was to get rid of its ballistic missiles with a range greater than 150 kilometers.

Under paragraph 11, Iraq was "invited" to reaffirm its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968. Under paragraph 12, Iraq was to unconditionally agree not to develop nuclear weapons or components or subsystems or to do nuclear research.

Under paragraph 22, if Iraq complied with the provisions of the resolution, then the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions related thereto would no longer have force or effect. In other words, if Iraq wanted to do commerce again with the rest of the world, it had to comply with the disarmament provisions. If it did not comply, the trade embargos would remain in effect, financial transactions would remain barred, and government assets would remain frozen. There was no provision in the resolution which authorized the invasion of Iraq if it did not comply. Iraq had never attacked the US, and the UN had allowed the status quo for over a decade

UN RESOLUTION 1284 REQUIRES QUARTERLY REPORTS TO SECURITY COUNCIL

UN Resolution 1284 (1999) established the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) to replace the special commission established pursuant to resolution 687. As Hans Blix stated in his report to the Security Council on March 7, 2003, UNMOVIC was working under resolution 1441 (2002) and several other UN resolutions. He was required to submit a quarterly report under resolution 1284 to the Security Council on "unresolved disarmament issues" and to identify "key remaining disarmament tasks" and the latter were to be submitted for approval by the Security Council in the context of a work program. (See Hans Blix’s Report, March 7, 2003).

The Security Council was to determine the progress of the disarmament, not the United States. When the US invaded Iraq on March 19, 2003, it violated UN resolution 1284, the UN Charter, and the Geneva Conventions. One must also remember that all the rhetoric about the tons of weapons of mass destruction was the primary justification for the U.S. to invade Iraq. The location of the WMD has been a mystery even though the U.S. has spy-satellite cap-ability.

NO-FLY ZONES OVER IRAQ NOT SANCTIONED BY UNITED NATIONS

Some may say that the shooting at US pilots who flew over the "UN no-fly zones" by the Iraqis constituted "attacks" on the US, but US and British warplanes have bombed more that 80 targets in Iraq’s southern "no-fly" zone during the last half of 2002, conducting an escalating air war even as UN weapons inspections proceeded and diplomats looked for ways to avoid war. The interesting point is that the United Nations did not recognize the no-fly zones or the US assertion that it was enforcing UN resolutions. In the fall (2002), Russia’s foreign ministry said escalating attacks by US and British warplanes against Iraqi air defenses have made it more difficult for UN efforts to resume weapons inspections in Iraq. Iraq said it fired at the aircraft because they were violating Iraqi airspace. (See "Airstrikes in Southern Iraq ‘No-Fly’ Zones Mount" by Vernon Loeb, Washington Post, January 15, 2003).

THE INTERNATIONAL CRIMINAL COURT

The obligations between states under the law of war have become obligations to protect individuals. The substitution of "international humanitarian law" for the terms "law of war" and "law of armed conflict" descriptively reflects this movement. Initially, the term "international humanitarian law" referred only to the four 1949 Geneva Conventions, but it is now increasingly being used to signify the entire law of armed conflict. The entire focus of the law of war has broadened from solely protecting states’ interests to increasingly protecting individual’s interests. ("Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict" by Major Alex G. Peterson, Military Law Review, pp. 13-14, Vol. 171, March 2002).

The law of war recognizes prosecution by third-party countries under the principle of universal jurisdiction. Under the Geneva Conventions, signatory states have a duty to prosecute or extradite persons alleged to have committed violations of the law of war, regardless of whether the state was involved in the underlying conflict.

The international community has devised another way to deal with rogue nations and war crimes. The Rome Statute of The International Criminal Court (July 1999) purports to impose jurisdiction over some accused criminals from non-consenting states, even those states which are not parties to the treaty that created the ICC. The Court has jurisdiction over the crime of genocide; crimes against humanity; war crimes (e.g., willful killing; willfully causing great suffering; extensive destruction and appropriation of property not justified by military necessity; unlawful deportation or transfer; intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated); and the "crime of aggression", which has yet to be defined.

The allegation that such a crime has been committed may be referred by a State Party (to the ICC), or may be referred by the Security Council, or may be received by the Prosecutor from any other source. If the Prosecutor determines that a reasonable basis to investigate exists, before investigating he must notify any states which would normally exercise jurisdiction over the crime alleged. Upon receiving such a deferral request, the Prosecutor must defer to the state’s investigation unless the Pre-Trial Chamber specifically authorizes the Prosecutor to proceed despite the deferral request. (See generally, "The Globalization of Justice: The Rome Statute of the International Criminal Court" by Lieutenant Colonel Bruce D. Landrum, United States Marine Corps, THE ARMY LAWYER, DA Pam 27-50-356, September 2002).

Perhaps this US invasion of Iraq might be cited as an example of a "crime of aggression". Perhaps a massive bombardment of non-military targets and the indiscriminate killing of hundreds or thousands of innocent Iraqi citizens could be cited as war crimes or crimes against humanity or even genocide. Perhaps the U.S. subjecting Iraqi prisoners to "cruel, inhuman, or degrading" conditions at U.S. detention centers might be considered a violation of international law as reported by Amnesty International. ("Rights Group Says U.S. Detentions Of Iraqis May Violate International Law" by Jim Krane, The Associated Press, 30 June 2003).

If the United Nations, the European Union, Russia, and China ever united to enforce these basic principles of international law, U.S. political and military leaders could be tried for war crimes.

CONCLUSION

The aforementioned international legal principles are applicable to all of the signatories of the relevant treaties and other international charters, agreements, protocols, memoranda of understanding, etc. between or among the nation-states involved. As previously noted, the "custom" of international law or the law of war or the law of human rights also has substantial influence among the nations of the world. Hence, if tribal war-lords or even a powerful nation-state were to act outside the norms of the international community by engaging in war crimes or genocide or an act of "aggression" which involved war crimes or genocide, they could be tried by an international tribunal even if they did not agree to be so tried.

On June 12, 2003 the United Nations Security Council approved another one-year exemption for American military from prosecution by the International Criminal Court. The resolution adopted by a 12-0 vote with three abstentions authorized a one-year exemption from arrest or trial for peacekeepers from the United States and other countries that have not ratified the Rome Treaty establishing the ICC. China indicated it was "positively considering" ratifying the Rome Treaty. In the previous year’s battle on this issue, the U.S. threatened to end far-flung peacekeeping operations established or authorized by the United Nations if it did not get an exemption. ("U.S. Given Exemption From War Crimes Prosecution", Associated Press, 12 June 2003).

Belgium had empowered its courts to try foreigners for serious human rights crimes no matter where they were committed. Several countries and most vociferously the United States criticized Belgium law which entertained lawsuits against Israeli Prime Minister Ariel Sharon, General Tommy Franks, former President George Bush, Secretary of State Colin Powell and General Norman Schwarzkopf. Secretary of Defense Rumsfeld vowed to freeze spending on NATO’s new headquarters in Brussels unless the law was revoked. ("Belgium Sticks by War Crimes Law Despite U.S. Anger" by Bart Crois and John Chalmers, Reuters, 13 July 2003). Eventually, under pressure, Belgium changed its law to apply only to Belgium citizens or residents. ("Belgium to Scrap War Crimes Law" by Andrew Osborn, The Guardian, 15 July 2003).

The most recent U.S. action to alienate the world community and show distain for the rule of international law occurred on July 1, 2003 when the U.S. suspended all U.S. military assistance to 35 countries because they refused to pledge to give U.S. citizens immunity before the international Criminal Court. The administration warned last year that under a provision of the new anti-terrorism law any country that became a member of the ICC but failed to give an exemption would lose all U.S. military aid, including education, training, and financing of weapons and equipment purchases. ("Bush Suspends U.S. Military Aid to 35 Countries Over the World Court" by Elizabeth Becker, New York Times, July 2, 2003).

The U.S. has been able to intimidate the international community and flaunt international law because of its military and economic might, but I believe it is inevitable that circumstances will change; and the ICC will eventually exert jurisdiction over U.S. criminal defendants. 7/03

INFORMATION PAPER

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.

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, E1 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. Forbidden targets, treaties, and techniques
2. Enemy captives and detainees
3. Civilians and private property
4. Prevention and reporting of unlawful acts and orders. FM 27-1, Your Conduct in Combat Under the Law of War, November 1984.

   BASIC RULES

   1. Don’t attack noncombatants.
   2. Don’t shoot at a parachute unless it holds a combatant.
   3. Don’t shoot at the Red Cross or hide behind medical service symbols.
   4. Don’t cause destruction beyond the requirement of your mission.
   5. Don’t attack protected property.
   6. Don’t use poison or alter your weapon to increase enemy suffering.

The customary law of war and the Geneva Conventions of 1949 also established the laws for treatment of noncombatants, enemy prisoners of war (EPWs) sick and wounded, and other persons captured or detained in combat: All captives or detainees must be treated humanely.

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. .

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 court also said: .

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.

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:

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.

"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:

He further commented:

Commenting about a Military Police squad attached to one of 7th Infantry Division's battalions, the PM said:

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 gover