Tuesday, November 6, 2012

Captured Documents as Evidence in Counterinsurgency Operations

Major Andrew R. Atkins of the U.S. Army has a great new article in the Military Law Review entitled "Doctrinally Accounting for Host Nation Sovereignty During U.S. Counterinsurgency Security Operations" available here.  Major Atkins argues for revisions to Army Field Manual 3-24 -- the so-called Counterinsurgency Manual (available here thanks to the Federation of American Scientists) -- to reflect more clearly and accurately the importance of host nation law in counterinsurgency operations.

Major Atkins places special emphasis on the need to expand the focus of U.S. counterinsurgency policy to reflect the primacy of host nation law (especially domestic criminal law) in circumstances in which U.S. forces are deployed to "support a sovereign host nation government" in a non-international armed conflict against insurgents within that country.  In particular, Major Atkins stresses that in these circumstances the standards for detention of insurgents is primarily governed by domestic criminal law which often provides stricter, more exacting standards and requirements for evidence than more traditional wartime military detention.

Of particular relevance to this blog is the implications of the argument for the importance of careful collection and handling of captured documents.  Major Atkins in fact specifically suggests adding a new sentence to FM 3-24 that would state, in relevant part:
captured documents, and captured equipment may yield information usable as evidence during the host nation's criminal prosecution of the captured insurgent.  Units may have to specially train and task organize capture forces to ensure the identification, collection, and safeguarding of information and items at the point of capture for use in host nation criminal justice proceedings.
Major Atkins notes that such an amendment "[e]ncourages efficient and effective collection of information and materiel for use against an insurgent in host nation criminal justice proceedings."