Operational Military Law: Deployment in Kosovo

By Lieutenant Commander Guy Killaby

The deployment of members of the Office of the Judge Advocate General (JAG) with Canadian Forces units on United Nations or NATO operations may appear to Canadians to be anomalous or simply another military novelty akin to its obscure acronyms or parade drill. Yet, like most of our NATO partners, the last decade has seen a rapid development - from notional involvement to doctrinal requirement - of Canadian uniformed military lawyers on military operations.

The provision of legal services at the tactical level for the Canadian Contingent in NATO-led Kosovo Force (KFOR) covers a generously wide spectrum of needs. For example, I advised the Canadian Commander of Task Force Kosovo on:

issues relating to international law and rules of engagement (use of deadly force);

the enforcement and administration of military discipline of the 1,400 Canadian soldiers distributed among six units deployed across Macedonia and Kosovo;

the contractual issues surrounding the nine separate camps in which those six units are

located; and finally,

the claims for the more than occasional damage caused by our vehicles during the operations.

Lawyers are sent into the Area of Operations (AOR) instead of waiting in Ottawa for the legal questions to be telephoned in, because of the incredible success the Canadian military has enjoyed on these foreign operations. For instance, the Canadian Forces can rely upon its long history of war-fighting and peacekeeping and it is well known among our allies that the Canadian Army, while short of people and challenged by some of its equipment, "punches above its weight" on these operations. For this reason, not only are Canadian troops called upon to "maintain a safe and stable environment" in their assigned portion of the central British sector, but Canadian troops and aircraft are continually tasked with all manner of difficult jobs in every corner of Kosovo.

For instance, members of the Royal Canadian Dragoons are sent with their Coyote reconnaissance vehicles to watch the Ground Safety Zone (a 5-kilometre buffer zone within Serbian territory negotiated in June 1999). None of our other NATO partners have sufficiently powerful equipment or flexible troops to do the task. When riots in the northern town of Mitrovica between Albanian and Serbian Kosovars threatened to ignite greater internal violence, it was the hirsute members of the Royal Canadian Regiment Pioneer Platoon (best described as combat rough-carpenters) who were rushed in to assist the British Royal Green Jackets in crowd control. The Canadian tactical helicopters (Kosovo Rotary Wing Aviation Unit) made up of elements of 430 Squadron from Valcartier have provided KFOR with a dependable and robust day/night surveillance capacity and quick-response transportation.

All of these elements were successfully deployed by KFOR on operations that had not been contemplated by anyone before we left Canada in December. All of them involved significant issues that might be characterized as "use of force" or "law of armed conflict" that had to be resolved. Most of these operations had short decision-making fuses measured in minutes. There was simply no opportunity to get "up to speed" on either the nature of the question to be answered or the operational context against which it lay. Finally, any combat - or near-combat - situation places a burden on a commander to get out concise and clear instructions to his troops. The legal advice should be integrated into his orders seamlessly. Any attempt to send out a "special legal annex" to troops in the midst of deploying to a hotspot merely invites trouble.

Since September 1999, the Office of the Judge Advocate General has become responsible for the superintendence of Canadian military justice. As expected, legal officers give advice to investigators and assist in the drafting of charges. Additionally, they ensure that the participants in summary trials (the accused, his assisting officer, and the officer presiding over his trial) are all sufficiently knowledgeable about their rights and obligations in this procedure. This involves supervising unit training in military justice and teaching the officers and senior NCOs who have active roles to perform in military tribunals.

An example of the use of the military justice system to help maintain the mission focus is the offence occasioned by a negligent discharge of a rifle or a pistol. Even in a war zone, there are strictly prescribed rules surrounding the handling of weapons. These are applied so that violent situations are not inadvertently escalated and so that innocent civilians or other Canadian soldiers are not injured or killed. These negligent discharges of personal weapons are not usually caused by a lack of training or skylarking, but rather because of fatigue or stress. The punishments meted out during a deployment must serve to grab the soldier’s attention - and of the others in the unit - to cause soldiers to take the extra care needed even when tired, dirty, and worried about family troubles at home. With the extra money earned on a foreign operation, the application of a fine may not pose much of a deterrent to a soldier. On the other hand, spare time is in short supply, so military punishments such as confinement to barracks or extra work and drill often serve the twin goals of summary trial sentencing: deterrence of unlawful behavior and remedial training.

The more familiar legal territory of claims and contracts takes on new dimensions during an operation. For instance, the main Canadian camp in Kosovo at Donja Koretica was built on abandoned land that turned out to be both private property and something called "socially owned" property. Of the portion determined to be "private" property, 25 land-owners (Albanian Kosovar farmers) were eventually identified by the United Nations workers who reconstructed the records destroyed by the retreating Serbian Army.

This did not end the difficulties, however. Even nine months after the end of the active hostilities in Kosovo, telephones remained non-existent and street addresses irrelevant. The negotiation of leases for the properties had to be arranged days or weeks in advance. The orchestration of the land owners, the village elders, and the necessary bureaucratic needs precipitated by the expenditure of the Canadian taxpayer’s money might be unfavourably compared to the task of herding cats.

Despite, or perhaps because of, these challenges in the practice of operational military law, the six-month deployment passes quickly. The interaction with the legal officers from the British Army Legal Services, the U.S. Army JAG Corps, and legal officers of the German Bundeswehr provides a unique opportunity to hone one’s own skills and provides a perspective on Canada’s emerging role in the field of "applied foreign relations." However, it is the opportunity to work alongside superb Canadian soldiers that inevitably helps to rejuvenate pride in observing what determined Canadians can accomplish.