Small Wars Journal

Counterinsurgency, the War on Terror, and the Laws of War

This paper comes to SWJ highly recommended by Dr. Erin Simpson of the Marine Corps University (aka Charlie at Abu Muqawama) - Counterinsurgency, the War on Terror, and the Laws of War - by Ganesh Sitaraman of the Harvard Law School. Here is the abstract:

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas - from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic and misplaced. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates.

Counterinsurgency, the War on Terror, and the Laws of War - by Ganesh Sitaraman (with a tip of the hat to Erin)



Tue, 03/10/2009 - 2:14pm

No disrespect to Mr. Sitaraman but given current philosophical and political trends in international law academia, COIN practitioners should hope that this state of benign neglect from the IL community continues as long as possible.

Generally, this community likes to invent theories that restrict the traditional prerogatives of sovereigns or advance novel reinterpretations of traditional understandings of treaty clauses or customary law that have no basis in precedent. The ICJ decisions relating to nuclear war, for example, are a disgrace and the ideology promoted by IL theorists like ICJ Judge Chistopher Weeramanty is one profoundly hostile to Western interests and concepts of sovereignty and contractual-customary international law.

Do we really want folks like that energized into lobbying to set the ROE for American soldiers engaged in COIN and dermining that population-centric tactics amount to war crimes? Because that will be the theoretical *starting* point for no small number of IL activists.