United States of America
Practice Relating to Rule 141. Legal Advisers for Armed Forces
The US Operational Law Handbook (1993) states:
A successful deployment legal assistance program will generally involve:
1. Advance planning by the legal assistance officer(s) and other judge advocates that may become involved in providing assistance to deploying soldiers.
Appendix 4 to Annex E to CJTF Tandem Thrust-92 Explan 1-92 (U) Legal (U) states:
The CJTF Staff Judge Advocate will:
(1) (U) Provide legal assistance to CJTF and his staff.
(2) (U) Serve as a single point of contact for operational law matters within the JTF AOR [Area of Responsibility].
(3) (U) Monitor foreign criminal jurisdiction matters with respect to U.S. personnel with the JTF AOR.
(4) (U) Ensure that all plans, policies, directives, rules of engagement, and targeting are consistent with the DoD Law of War Program and domestic international law.
The document further states: “The CJTF SJA [Staff Judge Advocate] is the Commander’s principle advisor in all matters pertaining to the LOAC.”
The deployment checklist, dealing with “international law considerations” at the post-alert stage, states: “The International/Operational Law Officer should be the SJA office’s point of contact at the EOC [Emergency Operations Center] and should keep the office advised at all times. He should attend all EOC briefings.”
The post-deployment checklist states:
The early stages of a deployment will usually have a multitude of issues of International/OPLAW [operational law] concern. Close coordination/contact must be maintained with the operational section … Trial counsel or legal advisers assigned to each subordinate unit (usually Brigade size units) should watch for potential International/OPLAW issues in their units.
Regarding Special Operations Forces, the Handbook provides for the assignment of a Judge Advocate to each Special Forces Group, a Psychological Operations Group, a Ranger Regiment and a Special Operations Aviation Regiment, stating: “These attorneys are responsible for providing the legal advice a SO [Special Operations] unit commander requires to perform his assigned mission.” The Handbook adds:
SO missions are politically sensitive, particularly in a peacetime or low-intensity conflict environment, and thus, the area of SO is fraught with potential legal pitfalls. The commander must consider not only the effect of traditional law of war requirements on his operation, but also the requirements of US law, such as security assistance and intelligence statutes, and international law in the form of mutual defence treaties and host nation support agreements.
The US Naval Handbook (1995) provides:
Navy and Marine Corps judge advocates responsible for advising operational commanders are especially trained to provide officers in command with advice and assistance in the law of armed conflict on an independent and expeditious basis.
The US Naval Handbook (2007) states: “Navy and Marine Corps judge advocates responsible for advising operational commanders are specially trained to provide officers in command with advice and assistance in the law of armed conflict on an independent and expeditious basis.”
The US Manual on Detainee Operations (2008) states in the chapter on “Roles and Responsibilities”:
Staff Judge Advocate/Legal Advisor
a. Serves as the JFC [joint force commander] legal advisor for the CDO [commander, detainee operations].
b. Advises the commander and other personnel responsible for detention operations on all matters pertaining to compliance with applicable law and policy.
c. Provides legal advice to the commander on all matters relating to detainee misconduct.
d. Advises the appropriate commander regarding investigation of suspected maltreatment or abuse of detainees, or other violations of applicable law or policy.
e. Normally serves as the CDO’s liaison to the ICRC.
f. In coordination with the JFS, advises the JFC on legal issues pertaining to detainee medical support.
g. Reviews interrogation approaches and techniques and advises the commander and intelligence personnel on compliance with applicable law and policy.
h. Advises appropriate commanders on evidentiary collection procedures necessary to prosecute detainees locally for criminal offenses.
In the chapter on “Transfer or Release from Detention”, the manual states:
Staff Judge Advocate
(1) Provides the JFC with legal guidance regarding applicable law and regulations.
(2) Serves as the command liaison to the ICRC and determines authorized ICRC activities related to the transfer/release of detainees.
(3) Provides technical expertise in support of required instruction and training related to the law of war.
The 1979 version of the US Department of Defense (DoD) Directive on the Law of War Program states:
The DoD General Counsel shall provide overall legal guidance within the Department of Defense pertaining to the DoD law of war program, to include review of policies developed in connection with the program and coordination of special legislative proposals and other legal matters with other Federal departments and agencies.
In 1987, a Deputy Legal Adviser of the US Department of State, referring to Articles 80–85 of the 1977 Additional Protocol I, affirmed: “We support the principle that legal advisers be made available, when necessary, to advise military commanders at the appropriate level on the application of these principles.”
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
The Office of General Counsel of the Department of Defense (DOD), as the chief DOD legal office, provided advice to the Secretary of Defense, the Deputy Secretary of Defense, the Under Secretary of Defense for Policy, other senior advisers to the Secretary and to the various components of the Defense legal community on all matters relating to Operations Desert Shield and Desert Storm, including the law of war. For example, the Secretary of Defense tasked the General Counsel to review and opine on such diverse issues as the means of collecting and obligating for defense purposes contributions from third countries; the War Powers Resolution; DOD targetting policies; the rules of engagement; the rules pertinent to maritime interception operations; issues relating to the treatment of prisoners of war; sensitive intelligence and special access matters; and similar matters of the highest priority to the Secretary and DOD. In addition, military judge advocates and civilian attorneys with international law expertise provided advice on the law of war and other legal issues at every level of command in all phases of Operations Desert Shield and Desert Storm. Particular attention was given to the review of target lists to ensure the consistency of targets selected for attack with United States law of war obligations.
The 1998 version of the US Department of Defense (DoD) Directive on the Law of War Program provides that the General Counsel of the Department of Defense shall “establish a DoD Law of War Working Group” which shall “provide advice to the General Counsel on legal matters covered by this Directive”. It also states that the Heads of the Department of Defense Components shall “ensure that qualified legal advisers are immediately available at all levels of command to provide advice about law of war compliance during planning and execution of exercises and operations”. The Directive further provides that the Commanders of the Combatant Commands shall “designate the command legal adviser to supervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of the law of war”. Moreover, the Commanders of the Combatant Commands shall “ensure all plans, policies, directives, and rules of engagement issued by the command and its subordinate commands and components are reviewed by legal advisers to ensure their consistency with this Directive and the law of war”.