Counterinsurgency, Rule of Law Operations, and International Law

In the second week of September 2007, leading U.S. military and diplomatic officials provided long-awaited reports to Congress and the President on U.S. political and military activities in Iraq. These hearings focused attention on how much progress U.S. counterinsurgency (COIN) efforts have made in Iraq. Although debate surrounding these events centered on the question of the withdrawal of U.S. troops, the testimony and hearings connect the ongoing attempts by the U.S. government to adjust to the challenges presented by waging COIN campaigns. In the wake of perceived failings of the United States in fighting insurgencies in Afghanistan and Iraq, leaders in the U.S. military have led efforts to develop doctrine and guidance for future COIN operations, including a new COIN field manual for the U.S. Army and Marines[1] and a "rule of law handbook" for military lawyers.[2] Interestingly, this new doctrine and guidance frequently emphasize the importance of international law to waging effective COIN campaigns and undertaking rule of law activities in COIN and post-conflict contexts. This Insight considers how these new strategies involve international law.

Development of Doctrine for Counterinsurgency Operations

Basic features of the new COIN doctrine

The difficulties the United States has experienced fighting insurgencies in Afghanistan and Iraq stimulated a renaissance of interest in COIN theory, policy, and practice. Experts agreed that, after Vietnam, U.S. political and military thinking marginalized or ignored COIN capabilities, leaving civilian agencies and military forces badly unprepared for the insurgencies they faced after U.S. interventions into Afghanistan and Iraq.[3] This painful realization provided the impetus for the development by the U.S. Army and Marine Corps of new joint doctrine for COIN, which was finalized in December 2006 in the form of the Counterinsurgency Field Manual. The U.S. military's new COIN doctrine has been called "paradigm shattering"[4] and has received an enormous amount of attention from experts, politicians, the media, potentially affected groups, and the general public.

The complexity of the new COIN doctrine challenges any attempt to summarize it, but identifying a few themes provides a glimpse at what the doctrine seeks to achieve. Insurgents and counterinsurgents compete for legitimacy and power, with the objective in that struggle being "the acceptance by the people of the state or region of the legitimacy of one side's claim to political power." [5] The new doctrine stresses that COIN forces cannot prevail in this competition through military means alone. COIN is predominantly a political not a military challenge that requires unity of purpose and effort from both civilian and military assets and the application of all elements of national power.

CCOIN forces must also apply their political, economic, diplomatic, military, and legal capabilities in a manner that comprehensively understands the society and culture in which COIN activities take place.[6] Winning the hearts and minds of the target population requires counterinsurgents to engage in a synchronized manner in a number of actions, including combat operations, civil security measures, training host-nation security forces, providing essential services, engaging in economic development, building governance structures, and conducting information operations.[7] These actions are also interdependent, meaning that COIN campaigns cannot ignore some to concentrate resources on a select few.[8] The doctrine describes the end state of successful COIN operations as the creation of a legitimate host-nation government capable of providing sustainable security, governance, and economic opportunities within the framework of the rule of law. [9]

International law and the new COIN doctrine

Unlike controversies about the relevance of international law in the global war on terror, the new COIN doctrine incorporates international law as an important tool for COIN forces to understand and utilize. In terms of international law, three themes emerge from the doctrine.

First, the doctrine makes international law immediately relevant by stressing the COIN objectives of legitimacy and the rule of law. The doctrine acknowledges that COIN actions will be measured against applicable rules and standards found in international law, even when insurgents show no respect for any legal rules.[10] In this sense, dismissing or marginalizing international law proves harmful to COIN efforts to compete for legitimacy and power and to convince the target population that the rule of law informs not only the ultimate objective but the way in which legitimate government will be created.[11]

Second, the doctrine focuses on international law as an important component of specific COIN operations. For example, the doctrine argues that COIN detention and interrogation activities must comply with international legal obligations, such as those found in Common Article 3 of the Geneva Conventions.[12] The doctrine takes the same approach to training host-nation security forces, emphasizing that such training must seek to equip host-nation military and police forces with the ability to provide security in compliance with relevant norms of international law.[13]

Third, international law becomes important as a potentially mediating source of rules in situations where U.S. understandings of good governance and the rule of law create tensions with cultural assumptions and political traditions of the host nation. The doctrine recognizes the need for COIN forces to work within the existing cultural and societal context of the host nation, but it also argues that local practices should not prevail when they damage the COIN effort. For example, the chapter on developing host-nation security forces states: "U.S. forces must make clear that they do not intend to undermine or change the local religion or traditions. However, Soldiers and Marines have a mission to reduce the effects of dysfunctional social practices that affect the ability to conduct effective security operations." [14]

International legal rules and standards, particularly those found in treaties and other instruments adopted by the host nation, provide one way to change host nation behavior without imposing, or being perceived to impose, the "American way" on the host nation. Seeing international law as communicating "international best governance practices" also resonates with multinational and non-governmental organizations that often play significant roles in COIN campaigns and the cooperation of which is important in establishing legitimacy.

In sum, the new COIN doctrine incorporates international law as a strategically and tactically important instrument for counterinsurgents in their struggle with insurgency movements for legitimacy and power. This approach contrasts with the often polarized and polemical debate over the role of international law in the global war on terror.

Practical Guidance for Military Lawyers Conducting Rule of Law Operations

The emphasis in COIN efforts on producing legitimate governments that can provide security and economic opportunity under the rule of law has directly affected military and civilian lawyers operating in the COIN contexts of Afghanistan and Iraq. Lessons learned from such lawyers revealed a need to provide more guidance for undertaking complex rule of law operations. Reflecting on the expanding nature of rule of law tasks for military lawyers, the Center for Law and Military Operations at the Judge Advocate General's Legal Center and School and the Joint Force Judge Advocate at U.S. Joint Forces Command collaborated to produce the Rule of Law Handbook: A Practitioner's Guide for Judge Advocates, which was finalized in July 2007.[15]

Unlike the Field Manual, the Handbook does not contain doctrine for rule of law operations but instead seeks to provide pragmatic guidance for Judge Advocates practicing law during military operations in COIN or post-conflict environments.[16] The Handbook is not specific to COIN, but the rule of law challenges found in the COIN contexts of Afghanistan and Iraq produced this new guidance for military lawyers. Predictions that the United States will continue to face COIN challenges in the next decade and beyond make the Handbook particularly relevant for the implementation of the new COIN doctrine

Unlike the Field Manual, the Handbook grapples with the meaning of the "rule of law" concept and provides a working definition of the rule of law for deployed Judge Advocates.[17] The Handbook classifies rule of law operations as part of stability operations undertaken by civilian agencies and military forces in COIN and post-conflict situations. The practical guidance provided to deployed Judge Advocates for conducting rule of law operations pays significant attention to U.S. law, host nation law, and international law.

In terms of international law, the Handbook argues that, above all, the reader should take away one central lesson from its contents: "joint, inter-agency and multinational coordination is the basic foundation upon which all rule of law efforts must be built."[18] Put another way, "coordination and synchronization is to the rule of law what fires and maneuver is to the high intensity conflict."[19] The emphasis on multinational coordination and synchronization brings international law into the spotlight of rule of law operations because international law will be critical to how such multinational collaboration will unfold in terms of both process and substance. The Handbook discusses, for example, problems that can arise in rule of law operations when coalition partners share different international legal obligations or diverse interpretations of shared duties. [20]

The Handbook further recognizes the importance of international law in rule of law operations by dedicating an entire chapter to the international legal framework for rule of law operations.[21] The Handbook observes that "deployed Judge Advocates working on rule of law operations need to be mindful of the universe of international legal rules applicable to rule of law operations, and especially how those rules vary from those applicable to more traditional military operations."[22] In terms of the framework for the rule of law, treaty law and customary international law on armed conflict, occupation, and human rights receive particular emphasis.[23]

Like the Field Manual, the Handbook adopts a pragmatic approach to the use of international law. For example, in terms of international human rights law, the Handbook asserts that, "[e]ven if one were to ignore legal obligations, in post-conflict settings, rule of law operations should be guided and informed by human rights law purely as a matter of efficacy."[24] Echoing the new COIN doctrine, the Handbook argues that "detention procedures adopted by US forces during the post-conflict phase may serve as a model for the administrative detention procedures that the host nation adopts for domestic use, and should consequently comply with international human rights norms."[25] The Handbook further parallels the new COIN doctrine in asserting that, "in light of the need to establish legitimacy of the rule of law among the host nation's populace, conduct by US forces that would be questionable under any mainstream interpretation of international human rights law is unlikely to have a place in rule of law operations."[26]

In short, just as international law is a critical resource under the new COIN doctrine, the Handbook makes clear the significance of international law to the process and substance of rule of law operations undertaken by civilian and military lawyers in COIN and post-conflict environments.

Conclusion

Experts predict that waging COIN campaigns and engaging in rule of law operations will be important challenges for the United States and other countries in the next phase of 21st century international politics. The Field Manual and the Handbook do not pretend that international law provides an easy solution to defeating ruthless insurgencies and crafting the rule of law in COIN and post-conflict situations. These documents avoid the drama surrounding international law's place in the global war on terror and focus on pragmatic and principled strategies for defeating insurgency violence and building sustainable, rule-of-law governance in countries traumatized by war. The COIN doctrine and the guidance for rule of law operations seem uninterested in the question whether international law is relevant and are more concerned with developing capabilities, in the United States and abroad, for implementing polices and practices comprehensively informed by international law.

About the Author
David P. Fidler, an ASIL member and a Member of the Editorial Board for ASIL Insights, is the James Louis Calamaras Professor of Law at Indiana University School of Law, Bloomington, and is the Director of the Indiana University Center on American and Global Security. He is teaching a seminar on "Counterinsurgency and Rule of Law Operations" in the Fall 2007 semester.

Footnotes

[26] Id. at 67