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Published on October 25, 2007

Author: Nellwyn

Source: authorstream.com

The Role of the Military in Rebuilding Governance: Contested Territory? :  The Role of the Military in Rebuilding Governance: Contested Territory? Paul Hughes, Colonel, US Army (Retired) Iraq Program Officer, Peace and Stability Operations, U.S. Institute of Peace Conference on Rebuilding Governance in Post-Conflict Societies: What’s New, What’s Not May 6, 2005 The U.S. Military Experience with Governance:  The U.S. Military Experience with Governance What does the U.S. Constitution say? Article 2, Section 2, Clause 1: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;….” Historical examples of military occupation: Post-Civil War era and Reconstruction, 1865-1878 Posse Comitatus Act of 1878 Philippine Insurrection, 1899-1902 Post-World War 2 (Germany, 1945-1949 & Japan, 1945-1951) Examples of no military government Panama, 1989 Iraq, 2003-2004 The U.S. Military Experience with Governance:  The U.S. Military Experience with Governance What does military government mean? Coincides with “military occupation” Results from the termination of a conflict Sometimes called “martial law” but should not be confused with “military justice” What does this mean? Martial Law is the suspension of civil authority and the imposition of military authority Military acts as the Police, the Courts, and the Legislature Degrees of variation are possible Subject to both international and national conventions & laws Civil War Reconstruction:  Civil War Reconstruction Suspension of Habeas Corpus by Lincoln Declared unconstitutional by the US Supreme Court (ex parte Milligan, 1866) “Martial Law… destroys every guarantee of the Constitution.” First Reconstruction Act (1867) Passed by Congress over presidential veto and overturned Lincoln’s Reconstruction Plan Declared martial law over the eleven former Confederate states US Supreme Court ruled Act unconstitutional in 1869 on the basis that martial law could not be imposed where civilian courts were in operation Posse Comitatus Act: A result of Reconstruction Prohibits the use of US military forces to enforce civilian laws Embodies the separation of civilian and military spheres and asserts civilian primacy over the US military Philippine Islands, 1899-1902:  Philippine Islands, 1899-1902 Martial law resulted from the ceding of Islands to the US by Spain following its defeat in 1898 Filipino insurgency led to Army efforts to pacify the Islands through resettlements, active patrolling and the use of military courts Civilian commission took control of colonial government in 1901 Army attempted to win over the civilian population through establishment of schools, local governments, and public works; insurgents began a terror campaign in response Post-World War Two:  Post-World War Two Germany (1945-1949): Shared authority with local authorities Achieved collaboration with others to create a viable economy Allowed for local rule at the state and municipal level; encouraged the writing of state constitutions Imposed a program for de-Nazification Military government largely viewed as a success Japan (1945-1951): Different type of military occupation - Japan retained formal sovereignty but ceded key prerogatives to MacArthur MacArthur rewrote laws, oversaw drafting of new constitution, restructured economy, and rewrote school texts Again, largely seen as a success Post-Cold War:  Post-Cold War US reluctance to impose military governments Legal authority exists in Fourth Geneva Convention and Army regulations Policy issue Panama, 1989: Martial law not declared resulting in riots, crime and arson in Panama City Major force structure issues involved Iraq, 2003: Again, martial law not declared; same results as in Panama Force structure and Arab street perceptions Iraq Insurgency, 2003-2005 and beyond: Martial Law under US military not possible Must support the sovereign government of Iraq Fourth Geneva Convention:  Fourth Geneva Convention Establishes international norms for occupying powers Defines protected persons (Article 4) and the corresponding responsibilities of the occupying power Section III addresses: Mass deportation or movements of civilians The continued operation of schools and hospitals The protection of real & personal property The availability of food and medical supplies The operation and suspension of civilian courts US Army Regulations:  US Army Regulations Based on FM 27-10, Law of Land Warfare Establishes US Army practices on the following: Duty to Restore and Maintain Public Order Cost of the Occupation and Use of Local Resources Sharing governmental responsibilities with locals Continuation of local courts and laws Respect for Human Rights and Special Repatriations Implementation of all components of the Fourth Geneva Convention

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