Counterinsurgency, Legitimacy, and the Rule of Law

Abstract

Law features more prominently in warfare today than at any time in memory. Stories about the legality of detaining unlawful combatants or unprivileged belligerents in Guantanamo Bay appear in the headlines weekly. Questions of venue, a question usually considered one of the most technical questions in legal procedure, have reached the American popular consciousness in the form of debates over whether to try suspected terrorists in civilian courts or military commissions. The current set of conflicts may prove to be the most heavily litigated in human history. The conflicts in Iraq and Afghanistan have witnessed an even greater expansion of law's role in war--law as a means of warfare. Much of the important front-line action in both theaters has been borne by teams of lawyers and development specialists. Both the military and US civilian development agencies have embraced these ostensibly legal activities--referred to generally as of law--for their contribution to our campaigns. For instance, in 2010, civilian and military rule of capabilities were dramatically expanded in Afghanistan with the appointment of Ambassador Hans Klemm as the Coordinating Director of Rule of Law and Law Enforcement at the US Embassy Afghanistan and the establishment of the Rule of Law Field Force-Afghanistan (ROLFF-A) to provide greater capability to conduct rule of operations in nonpermissive environments. The commitment to rule of as part of the Afghanistan campaign appears to be increasing, with the expansion of ROLFF-A into the multinational NATO Rule of Law Field Support Mission in the summer of 2011. Law's ascendance as a means of warfare is tied to the ascendance of counterinsurgency as a form of warfare. Counterinsurgency, as a contest between opposing groups to be recognized by a particular population as their legitimate government, places the host nation government's at the center of the conflict. the rule of law, then, is important to counterinsurgents because of its contribution to a government's legitimacy. The rule of features prominently in the growing stability operations doctrine as well. Not only are stability operations central to counterinsurgency, but the value of the rule of in providing stability goes beyond counterinsurgency to stability operations conducted in other contexts. (1) Although legitimacy is the main objective in counterinsurgency, the counterinsurgency and stability operations doctrines both lack a meaningful definition of and a model for how the rule of contributes to legitimacy. (2) Counterinsurgents are hardly the first to address the problem, though. Questions about how and operate together have long been studied in jurisprudence and social psychology. The two fields approach the question quite differently, but both offer insight into what means to counterinsurgents and how it can be integrated in a counterinsurgency campaign. Counterinsurgency, Rule of Law, and Legitimacy It would be hard to overstate the role of in counterinsurgency doctrine. The Counterinsurgency Field Manual mentions of law 30 times, including an entire section on Establishing the Rule of Law. (3) Given its importance in current operations, it is no surprise that the of law has received attention. As defined by the Army: Rule of is a principle under which all persons, institutions, and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and that are consistent with international human rights principles. It also requires measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in applying the law, separation of powers, participation in decisionmaking, and legal certainty. …