Military Police Contribution to Evidence Based Operations

“The ultimate goal of a military operation is to ensure that a person no longer poses a threat to the troops by putting that person out of action in combat, by taking that person prisoner, or by detaining him… we can no longer solely rely on intelligence based operational planning; we must use Evidence Based targeting to ensure these criminals are brought to justice…”

COL Voetelink, Norwegian Army, 2014

Military operations over time have seen tactics, techniques and procedures evolve and adapt to suit a particular conflict or operation. Of note, Australian troops are well renowned for their adaptation, from the trenches of Gallipoli through to more recent operations in Iraq and Afghanistan. However, despite our tactical innovation, we have not fully grasped those aspects of the Rule of Law that seek to influence the modern battlespace. We have seen a significant expansion in the number of Australian government agencies deploying overseas in support of a wider response to rebuild the Rule of Law in a failed or failing state; thus highlighting the need for more advanced interagency collaboration and co-operation at the strategic and tactical level to support this objective (Utilising Evidence-Based lessons, McIntyre, 2014). As we progress into today’s modern battle space we are faced with an ever increasing complex legal system that more often than not dictates how we fight and win wars.

This post will discuss how Military Police could contribute to evidence based operations into the future; critically analyse what has occurred in the past and how we can use that experience to develop Military Police capability in this field across the spectrum of conflict.

The Australian Army and the Military Police have invested effort in developing a more cohesive and integrated multiagency approach to the way we train and fight. The Army’s review of lessons learnt over recent operations has seen a move in some occasions from intelligence lead operations to evidence based operations in both Iraq and Afghanistan. Evidence based operations, or more commonly referred to these days as EvBO, was initially conceptualised during the Iraq war. Its exact origins are unknown, but it appears to be derived from the military term Effect-Based Operations (EBO). To support this concept, ‘warrant based targeting’ was introduced as the Iraq war progressed. The US armed forces were restricted to arrests on the basis of an Iraqi warrant; purposefully designed to allow for the gradual re-building of Iraqi Rule of Law, and importantly, those arrested to be tried by the Iraqi government.

By 2007/08, the US military were transferring suspected criminals to the Central Criminal Court of Iraq for prosecution. To make criminal proceedings possible, this Iraqi tribunal needed access to the information underlying a suspect’s arrest and to any other evidence collected. All material had to comply with Iraqi standards for evidence. This meant that operations had to be geared towards facilitating criminal proceedings which could lead to a suspect’s conviction and imprisonment (conviction-focused targeting) (M.J. Frank, Trying Times: the Prosecution of Terrorists in the Central Criminal Court of Iraq (2006). From the end of 2008, warrant based arrests became the only method to effectively prosecute terrorists and criminal elements. This then made the Iraqi law key in planning and executing of arrest and detention operations.

Afghanistan initially required operations that were generally intelligence-driven and kinetic in nature. Towards the end of the ISAF mission in Afghanistan the term EvBO had become popular once more. In view of the sovereign status of Afghanistan, it was decided to include in the ISAF operational plan that detainees had to be transferred to the Afghan National Directorate of Security (NDS) within 96 hours. The detention function for persons captured by Australian forces was undertaken by 1 MP Bn, designated as the Detention Management Team. Importantly, we gained valuable experience first-hand in evidence based support to military operations. In short, EvBO aimed to remove insurgents from the battlefield via the Afghan criminal justice system. Again, similar to Iraq, it required military operations to be conducted in accordance with Afghan law, and that military personnel were expected to collect evidence that can be used in Afghan criminal proceedings; a perfect role for Military Police yet underutilised during the span of the campaign.

What these examples suggest is that EvBO should be seen as a fundamental component to the redevelopment of a nation’s Rule of Law. Lautenbach describes the Rule of Law as “…how a society may be organised by means of law”. (G.E.T. Lautenbach, The Rule of Law Concept in the Case of the European Court of Human Rights, p. 2) The challenge for Military Police is: how do we seize the opportunity and provide effective support to EvBO across the spectrum of operations?

While it is acknowledged that the Rule of Law is generally not the main effort of international forces at least initially; invariably re-building the Rule of Law is fundamental to enduring stability post conflict and an effective and efficient EvBO will underpin success in this strategy.

This is proven on Counter-Insurgency (COIN) oriented operations where the highest priority in this type of operation is to create a safe environment for civilians. Military commanders are expected to transition from combat operations to law enforcement/constabulary/stability activities as quickly as possible. This is not as far-fetched as it may seem; in addition to carrying out violent attacks, insurgents are often involved in criminal activities such as the production and trafficking of drugs. (U.S Field Manual 3-24, Counterinsurgency, December 2006, 1-23.) In a COIN scenario the Military Police could provide not only high level mission planning advice for the JTF, but also tactically in close support to a Combat Team executing a warrant based mission.

Criminalization of insurgents is a prime example of what is currently labelled ‘lawfare’. This amalgamation of the words law and warfare describes an increasingly popular approach of the insurgents during armed conflict and is defined as “the strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective” (C.J. Dunlap, Jr., Lawfare: A decisive Element of 21st –Century Conflicts?, Joint Forces Quarterly (2009), pp. 34-39.) Lawfare reflects the notion that law has become an inherent part of 21st century armed conflict and only enforces the legitimacy of why the Military Police will be critical in supporting operations across the spectrum of conflict.

Importantly, transitioning to Host Nation security forces also means that military personnel have to support the criminal justice system. This brings us back to how EvBO was introduced in Afghanistan (U.S. Counterinsurgency Field Manual, 1-24) and how the Military Police are critical to supporting legitimate military operations.

The close support 1 MP Bn can provide at the point of capture to address and deal with the detainee handling and evidence collection is a key message Military Police must sell to combat commanders. As the subject matter experts on the ground, once the infantry move in and provide security, the task to support the capture and ultimate processing of criminal / insurgent / terrorist actors lies with the Military Police. For instance, when a suspect has been identified, this information would then flow onto a deliberate targeted action. The suspect can be detained; whilst at the scene, Military Police would secure the crime scene, collect evidence, take witness statements, take fingerprints, seize property (if and when the security situation allows it). This has to be done in such a way that the material obtained can then be used to support criminal proceedings in court. 

Two valuable examples stand out in recent history. The Military Police Company of INTERFET conducted numerous tasks that were focussed on the collection, recording, accountability and security of evidence. Both ADFIS (SIB) and GD MP were engaged in the collection of human remains that were the subject of atrocity allegations from multiple locations during the course of the deployment. The INTERFET Force Detention Centre was also the designated collection point for all seized weapons within the Dili area, which were required to be treated as evidence. Processing of detainees at times produced further evidence that was linked to criminal activity and aided in criminal prosecution. This evidence included significant amounts of cash, militia insignia and various items of documentary evidence.

Another great example is an operation conducted in Afghanistan on 16 May 2013. Afghan and US troops detained a man during a cordon and search operation in the Now Zad district, Helmand province and seized 2500 kilograms of opium, two AK-47 rifles and nineteen AK-47 magazines. In order to facilitate an effective prosecution of cases like this before an Afghan court, the troops had to provide witness statements detailing the seized material, thumb printed Afghan statements; photographs of the suspect with the seized opium and the weapons on scene, photographs depicting unique markings, and individual close ups of the weapons; and a hand drawn sketch to document the lay-out of the scene and the location were the suspect, weapons, and drugs were found. (Ghanizada, Senior Taliban leader arrested in Baghlan: ISAF, Khaama Press (AP), 17 may 2013, http://www.khaama.com/senior-taliban-leader-arrested-in-baghlan-isaf-2396 . The collection of evidence and processing of course took significant time to complete; had Military Police provided support to this operation, their tradecraft fundamentals of evidence collection, statement taking and preservation of evidence could have significantly expedited the judicial process; importantly allowing combat arms to continue with follow on actions.

In conclusion, throughout this post I have analysed historical examples demonstrated through significant coalition lead operations that have shown the development of EvBO and the major effect it has had on the operations. I have highlighted that there is a significant requirement for Military Police in these operations; and that the Military Police would be the ideal force element to be driving EvBO at the strategic and tactical levels. Military Police are ideally suited to lead the development of EvBO within an Australian context; however, it would be prudent for a full analysis of current and future Military Policing capability to be conducted. As the world continues to grow in complexity, we must be adaptive in our thinking, especially, how to best use capabilities and resources to achieve the end state. Without taking the lead on the development of EvBO as a Corps, the Military Police are not meeting its full potential. The opportunity is there, we just need to sell the message.