The Rule of Law and the New Counterinsurgency Field Manual

The Rule of Law and the New Counterinsurgency Field Manual

Ganesh Sitaraman

If you’ve been thinking about war during the last thirteen years, legal issues have inevitably crossed your mind. Now, almost eight years after the publication of Field Manual 3-24 Counterinsurgency, the U.S. Army and Marine Corps have released a revised edition of the manual, now titled “Insurgencies and Countering Insurgencies.” The new edition retains a section on “Legal Considerations,” upgrading it from an appendix to its own chapter, in addition to discussing legally relevant issues (like the use of force) throughout the manual.

Overall, much of the new manual’s discussion of legal issues remains similar to the 2006 edition. The matter-of-fact discussion of laws of war principles (necessity, humanity, discrimination, proportionality) is largely unchanged, as is the explanation of various legal authorities for combat operations and military activities. The new manual continues to recognize the potential for counterproductive uses of force, urging counterinsurgents to ensure they “do not create more enemies than you eliminate with your action.” But at the same time, much is lost with the removal of the 2006 edition’s chapter entitled “Leadership and Ethics in Counterinsurgency,” which included an innovative discussion of proportionality, in addition to engagement with issues at the nexus of law, ethics, and the use of force.

The new edition’s discussion of legal issues is not perfect, but some of the most promising revisions are in the new manual’s more sophisticated section on “Establishing the Rule of Law.”

The most profound shift is from broad statements about the importance of establishing the rule of law to an emphasis on tailoring action to the specific context. The manual asks counterinsurgents to assess the realities on the ground, including the possibility that the institutions of justice might not be functioning and that interim justice processes (rather than permanent justice processes) might be preferable at first. It also stresses the importance of understanding “informal” or traditional dispute resolution processes – like the shura and jirga in Afghanistan – and assessing whether those systems can be used in an interim fashion or potentially even be incorporated into the formal legal system.

Rule of law operations have also traditionally focused on criminal justice – often shorthanded to “police, prosecutors, and prisons,” or “cops, courts, and corrections.” The Afghan experience raised the salience of civil justice, with Afghans expressing need for ways to resolve land and water disputes. The new edition accounts for this important, and often overlooked, element of the rule of law. To be sure, the manual doesn’t go into detail on specific rule of law practices or include examples of operations from Afghanistan and Iraq (such as the Rule of Law Field Force in Afghanistan), but these changes are nonetheless significant.

The new manual, unlike the old, also discusses the role that transitional justice mechanisms – amnesties, trials, truth commissions, purges, and reconciliation – can play in ending a conflict. Its approach is at once principled and tactical. As a principled matter, the manual references transitional justice explicitly in its discussion of the rule of law, and it urges counterinsurgents to work with their civilian counterparts to consider supporting transitional justice efforts.

As a tactical matter, the manual recognizes that transitional justice doesn’t always take place in the post-conflict environment, and that specific efforts can help bring an end to the conflict itself. For example, in discussing “indirect approaches” to countering insurgents, the manual notes that amnesties and reintegration might be operationally helpful in some situations:

[A]mnesty provides the means to quit the insurgency and reintegration allows former insurgents to become part of greater society. Rifts between insurgent leaders, if identified, can be exploited in this fashion. Offering amnesty or a seemingly generous compromise can also cause divisions within an insurgency and present opportunities to split or weaken it. Counterinsurgents can also act to magnify existing rifts. (10-42)

In the ongoing transitional justice debate between politics and justice, the manual thus recognizes both sides: the importance of politics to ending the conflict, and the possibility of justice as a way to further the rule of law.

At a broader level, another change is that the new edition highlights the importance of the Legal Preparation of the Battlefield – educating the media, the local population, and the American people about the legal context of military operations. It notes that a better understanding of the laws of war and applicable local laws can help build trust and also discredit insurgent violations. This is a welcome development, given how important law is to every aspect of military operations.

A doctrinal manual can’t do everything, but the new 3-24 takes an important step forward in integrating some of the most important lessons learned from more than a decade of rule of law operations.

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Note below that I suggest a specific reason for two of our most new and prominent counterinsurgency trends. These two new and prominent trends being:

1. The consideration of "transitional," "informal" and/or "interim" political, economic, social, justice, etc., systems. And

2. The, corresponding and associated, need to gain a better understanding of foreign societies.

The specific reason for these new requirements seems to be that (1) we have learned that such radical transformations as we require (to western political, economic, social and justice norms) will often (2) need to be undertaken (much to our disappointment and dismay) via "baby steps" rather than all at once.

We initially believed (and adopted strategies, tactics, manuals, etc., accordingly) that, because of "universal (western) values," we would be able to -- quickly and efficiently -- transition populations to our way of life, our way of governance, our justice systems, etc.

We subsequently learned, from our experiences in Iraq, Afghanistan, etc., that this such line-of-thinking (which seems to have formed the foundation for our planning, actions, manuals, etc.) was grave error.

Now we have been forced to take a step back and realize that the transition of outlying states and societies to our way of life and our way of governance, etc., will take more time, will need to be undertaken in a more step-by-step fashion and will require greater finesse, understanding and patience on our part.

The new counterinsurgency manual, the various chapters thereto (and, indeed, our new foreign policy direction?), in general, reflecting this new understanding?

(Note below also that I, intentionally, identify "counterinsurgency" as still being -- in our eyes -- simply another means/method for achieving our primary objective: the transformation of outlying states and societies more along modern western lines; in this instance, by defending/assisting a local governor/government who is acting/we believe will act, in our behalf, to achieve such ends.)

I think you are confusing basic beliefs and assumptions that drive decision making with national objectives. I think most members of the US military start with basic assumptions that modernization (economic growth, certain cultural development, etc) is the correct and natural path for every civilization. This creates a basic set of assumptions that drives decision making and, in many cases, thwart our ability to achieve national objectives. However, the actual national objectives and relational for involvement can be wide and varied. This is the basic thought represented in Chapter 1 of the new FM, at least.

Sarapet, in his second paragraph below, said:

"We are so desperate to gain an intuitive understanding of foreign societies that we are willing (and often able to do nothing but) force a structure on these people that is familiar to us only for own psychological comfort."

In truth, we had/have little interest in understanding foreign societies.

This, because our goal was/is to transform these societies more along our modern western lines.

It is for this reason that we "force(d) a structure on these people that is familiar to us."

The only reason that the Manual NOW is concerned with "transitional" and "informal" justice systems is because we have learned that such radical transformations as we require (to western political, economic, social and justice norms) will often need to be undertaken (much to our dismay, disappointment, embarrassment and chagrin) via "baby steps" rather than all at once.

It is for this reason only that we have now been forced -- of necessity and not only re: matters of "rule of law" -- to:

a. Seek some intuitive understanding of foreign societies and

b. Adopt "transitional, "informal" and "interim" measures re: our counterinsurgency and other state and societal transformation methods.

Thus, keeping with G. Martin's observations below wherein he notes that

a. " ... the powers that be determined from the beginning that the essence of the manual was good." (Transformation of outlying societies -- along modern western lines -- was the goal) and

b. " ... that it (the Manual) only needed to be updated with lessons learned ... from OEF and OIF." (Such transformations may need to be undertaken in a step-by-step fashion -- rather than all at once -- this necessitating that we consider "interim measures" and also develop some understanding of these foreign societies.)

Bottom Line?

1. The "shinning house on the hill" has much less "pull" than we thought.

2. The "Arab Spring" caused more harm than good.

3. The concept of "universal values" does not exist.

4. The "end of history" has not come.

Thus, post-the Cold War, a "new era" has not (as we originally thought and banked on) dawned. Therefore, we must adapt our manuals, thinking, etc., accordingly.

Perhaps the fact that the Manual is still concerned with "transitional" and "informal" justice systems should give us all cause to pause and question its philosophical underpinnings. Law and justice are always relative to the people, time, and place of the discussion. There cannot be a "formal" and "informal" justice system; there is only the effective and the ineffective justice system. "Formality" in this case is just a formality, a term of art and not a particular useful piece of information. "Informal justice systems" are often just as formal (as formal philosophical systems) and complex as the "Formal" justice systems.

Manuals like these show there is reason for us to reflect critically on our highly ideological approach to the rule of law when it comes to counterinsurgency and occupation. We are so desperate to gain an intuitive understanding of foreign societies that we are willing (and often able to do nothing but) force a structure on these people that is familiar to us only for own psychological comfort.

At the end of the day, we can't even decide if the Rule of Law is about the establishment of a self-sustained, commonly accepted, contextually rooted system of dispute resolution (i.e. justice) or the establishment of rules for the society as a whole designed to compel certain norms that we happen to agree with (e.g. democracy, western business contracts, etc).

So to those of us educated in matters social and human, this manual is little more than a set of parenthetical remarks and untested hypotheses. Meanwhile, to the masses of the force, it is an impenetrable fog. These earnest souls, in their bid to master the exercise of power over humans, necessarily understand and apply it in the most superficial way possible.

And thus the wheels keep spinning.

I think you hit the nail on the head when you say "question its philosophical underpinnings". As a member of the team who worked to re-write the manual I can tell you that the powers that be determined from the beginning that the essence of the manual was good- that it only needed to be updated with "lessons learned" from OEF (in 2011, mind you) and OIF (which was determined to be "done" at the time). That there really was no discussion about the underlying assertions in version 1 means we did not question any underpinnings.

And that is what is missing in most of our concepts in my opinion. We start with the institutional conventional wisdom and go from there.

Complaining that we start with institutional conventional wisdom when writing doctrine is like complaining that the sun starts with being really hot.

More accurately it wasn't wisdom, but a false narrative unsupported by history or any facts that was promoted by those who had an agenda to promote this ineffective doctrine.

What is the agenda they are promoting and the narrative they are telling?

Bwilliams,

The agenda appears to be to protect the reputation of those who championed our COIN doctrine from the outset. Some relatively obscure individuals became quite famous, and in some cases rewarded well financially, by promoting the so called "new" doctrine, and then accusing those who questioned it as "not getting it." One of their claims was they were helping the military transition into a learning organization, but once they got the doctrine approved they fought against any major changes, under the assumption they got it right. I can't recall if it was you or another officer working on the document that posted on SWJ requesting input, and I responded by asking how open to change was the group reworking it, and the reply was "we think we got it right, so we're not looking for substantial change, basically it was just going to be tweaked a little." Hard to make an argument that we're a learning organization, when we go with the assumption, and perhaps direction from higher, we think we got it right, but will allow a little trimming on the edges.

Before I describe the narrative, I think it is important to emphasize that I respect what GEN Petraeus did in Iraq. His leadership and focus on killing insurgents, with a secondary focus on the population, is what created the decent interval for our withdrawal.

I think Gian is partly right that the narrative is a savior General rode in and saved the day, and the COIN doctrine is sacred and beyond critic. Population centric COIN and the clear, hold, and build approach, are just a course of action that may be appropriate in a particular case, it is the only course of action available.

We have junior to mid-grade officers, 50% who appear incapable of critical thinking who bought this hook, line, and sinker and will maintain this dangerous narrow mindedness in the Army for another generation.

The rewrite basically says the following; The United States could become involved in an effort to counter an insurgency in various circumstances in the future. How we counter it will depend on overall policy and strategy and the circumstances of involvement. (Chapter 1). Involvement will take place in a broader operational environment and these are some important considerations. (Chapter 2 and 3). For an insurgency itself, these are some important aspects to consider (Chapter 4 and 5). However one counters an insurgency, here are some things to think about concerning command(chapter 6), planning (chapter 7), and intelligence (chapter 8). If we are directly involved in an insurgency you might be doing these things (chapter 9). If we are enabling a partner we might do these things (chapter 10). These are important considerations of working with another security force (chapter 11). Here are some important considerations about making assessments about your progress (chapter 12). Don't go to jail (chapter 13).

I am not trying to defend the rewrite. I think it could say what it says in a much clearer and concise way. Nor do I agree with all the material in the document. However, rather the material is right or wrong is of little relevance to this discussion. If one is going to have a discussion on that, one must at least start with agreement of what a document says. I always saw the role of doctrine as trying to capture what the institution thinks and integrating it in some coherent fashion. I think that was done. However the product does not match the 2006 version of the manual nor does it match your criticism above. In sum, I don't have to think the material is right or wrong to point out your are being critical of an FM that wasn't written.

Your assertions about what the document says, don't represent the document that is now there. The current rewrite does treat "the clear, hold, and build approach" as one method one may do. As far as "population centric COIN", there is no discussion of that beyond telling the reader to not assume the population is the center of gravity. (See paragraph 7-20 to 7-22). I am not sure who you wrote, but the document is significantly rewritten. It retains some of the material various people thought was important (see the COIN paradoxes), but in all this is a document with a lot of changes in it. I am not sure how that was written to support the viewpoint that “we got it right”. Much of the criticism on the rewrite is more about being critical about what one wants to be mad about then an actual look at the document that is there. (See Bing West’s review, for example)

As far as what I actually think, I think the Iraq effort was doomed to failure because of fundamentally wrong assumptions. Iraq was never held together by a security force. It was held together by a domestic intelligence apparatus. How one replaced that or finds a policy solution that still works without that apparatus was a fundamental problem that was never examined. No one questioned the wisdom of building a military as a means to control the country. Gen. Petraeus provided a modest change, but nothing that would have mattered.

Bwilliams,

Fair enough, I accept the criticism that I haven't finished reading the new FM and I don't know when I'm going to have time to do so in the immediate future. I appreciate the corrections, but unrelated to the new FM, I still think a lot of people are clinging to the myths of population centric COIN, draining the swamp, and believing economic development will defeat modern networked insurgencies (politics is not always local). My concerns based on the 2006 version of the FM and subsequent guidance by Army leadership that they think they got the FM basically right (the 2006 version, so only modern changes would be allowed is the following:

- We will become frustrated with irregular warfare (much broader than COIN, but the Army doesn't seem to grasp that yet) and marginalize it like we did post-Vietnam.

- The IW we retain will be focused on COIN only, and the often inappropriate lessons (always situation specific) that have been promoted by the 2006 version of the model.

- We will cling to the past, and there will be two broad schools of thought in the service. One will be that we shouldn't do IW, and the other is we should build the force to do little more than COIN like we did in Iraq and are finishing up in Afghanistan. Both responses are obviously incorrect, and this is why I think Outlaw's argument about considering the IW we are seeing in Syria, Ukraine, and other places deserve special attention. These aren't insurgencies in the traditional sense, nor are they conventional operations. We need to move beyond the simplistic argument about the FM (the damage was already done with the 2006 manual and how it was adapted in practice with little thought to the particular situation in many cases), and assess what IW threats actually threaten our interest. Then we need sustainable approaches for managing those security threats (we're not going to defeat them in most) in a way that is sustainable, which isn't large scale occupation operations in every country that has an insurgency or terrorist threat.

I know the above deviated considerably from the FM critique, but it is related.

You wrote, "However, rather the material is right or wrong is of little relevance to this discussion. If one is going to have a discussion on that, one must at least start with agreement of what a document says."

I disagree strongly with the first sentence, and agree strongly with the first. My error in misrepresenting what the current FM states, but whether it is right or wrong does matter.

You wrote, "I always saw the role of doctrine as trying to capture what the institution thinks and integrating it in some coherent fashion. I think that was done."

I will default to your expertise on doctrine production, but I think the institution should also consider what we want to inspire to, what is in the realm of the possible. Doctrine that is more concise and less prescriptive, that provides a loose framework for perceiving a problem (without putting in a box) and potential approaches for solving or managing it would hopefully compel users to develop course of action appropriate to their situation, and as the situation evolves to adapt, and not cling to some false belief that if you do X for 10 years you'll be successful. Not criticizing your point, I'm criticizing our approach to doctrine.

I think the material in doctrine matters. Doctrine's power is in shaping education and training. It can be a very powerful tool in shaping the force. I just think if one is going to debate the substance of any document, the first step in is to gain a shared understanding of the substance of the document.

Brent- not sure I follow you here. We can't control the sun- but surely commanders can give guidance to their subordinates to question the conventional wisdom. Or are you saying our commanders never do that?

But- I'm a little surprised you are defending the doctrine and process so much. It isn't an attack on you- surely you can acknowledge a few issues with the process and the final product- can't you?

In the end, my last comment was about ALL our concepts- not just 3-24. There is no- to borrow a design concept- description of the environment. Heck- I don't even think we discuss "the problem" that much. Its just off to developing the solution- which usually comes from our commanders. Very little- if any- critical thinking and definitely very little creativity.

Maybe I should be more cynical and just accept that we can't question the contemporary bumper sticker wisdom- but I'm a little more hopeful.

LTC Martin - My apologies if that sounded a bit defensive. I should express myself in more then one sentence next time avoid that. My point isn’t that it is right no wrong. My point is that it mostly represents the institutional conventional wisdom and the process dictates that. Doctrine, especially doctrine where there is significant disagreement, is a process of compromise. However, in the end, one normally gets a product that reasonable represents what most people in the institution think or at least the mean of what people think.

If one looks at this chapter, that is about what you have. You have a chapter that basically says: 1. Here are some legal considerations for yourself. 2. Rule of law is important. 3. Various societies have different means of conflict resolution. As a change in the document, I think the last is the major change. I also think that change fairly represents how thinking has changed within the institution.

The larger questions concerning doctrine is rather conventional wisdom is right and rather one should have a process of capturing conventional wisdom in writing. To the Army, doctrine is a tool of norming beliefs and knowledge towards the institution. The power of doctrine is that it shapes education and training. However, at the end of the process, one gains an institution that is homogeneous in its thoughts and beliefs. That has both benefits and disadvantages.

That said, it wasn’t an attempt to defend the document or the chapter. It was simply pointing out that you are being critical of something that is fundamentally conventional wisdom for being conventional wisdom.

Understand- thanks for clarifying.

I actually like something a former SAMS director once said recently, "maybe we need to stick to the tactical in doctrine and leave out topics that aren't overtly military in nature." I think he might have been on to something.

My take on COIN is this: number one we have to undestand- I mean critically- our own nation's interests, populace's expectations, and what the real mission is (not what is stated in bumper sticker documents). No 2, we then look at all this "pop-centric" junk which our doctrine and conventional wisdom prioritizes. COIN is simply a tool we can use at certain times and places to get to our own ends. Period. Obviously it is against our conventional wisdom and national mores to engage in anything remotely "non-pop-centric"- so understanding that and how that will limit us- as well as the host nation- is important. Our COIN doctrine should address that (the theory that if you are nice to people and meet their needs, then there'll be no insurgency) and talk about the possible invalid assumptions inherent in that theory- and what that means to the military guy on the ground.

No. 3 should be some talk about the challenge of planners and commanders in crafting ways (operational art, strategy- whatever) to make tactical action mean something in this morass of craziness that I just described above. If all we do is assume MDMP, nested purposes, and hierarchical structures will be sufficient then I think we're screwing ourselves. As one smart colonel remarked to an audience I was in: "when you're dealing in what we used to call 'Military Ops Other Than War', there really is no such thing as tactics-operations-and strategy. It is tactics and policy- and they all bleed into each other... and on each other."

So, to me, getting into the weeds of how to "do" COIN by skipping the inherent internal craziness that MOOTW causes one, pretending that the purpose of COIN is to placate the masses, and sticking to the tactical while advocating implicitly a very questionable theory of COIN- is disengenuous to our force and country. But- I also understand why it was written- as one colonel remarked out there to several of us- "there's a reason we invited so many from academia and around the Interagency: we're trying to sell the concept and get buy-in more than create a doctrinal framework." Unfortunately we aren't limiting that framework to STRATCOM...

- G

I have always thought the defining of the problem or our interests in involvement is an undouable task. Interests are largely what we make of them and will be constructed in the minds of different policy makers differently. Moreover, as the conflict moves forward in time, how various policy makers construct our interests will change. Events on the ground will change the individual prespectives of each policy makers. Thinking one will define our interests clearly, is really an hope that one can approximately estimate interests that meet the need to act and, if achieved, will largerly satisfy the various policy demands.

On planning, I would love your thoughts on chapter 7 (paragraphs after 7-13), in particular.

I have always thought the defining of the problem or our interests in involvement is an undouable task. Interests are largely what we make of them and will be constructed in the minds of different policy makers differently. Moreover, as the conflict moves forward in time, how various policy makers construct our interests will change. Events on the ground will change the individual prespectives of each policy makers. Thinking one will define our interests clearly, is really an hope that one can approximately estimate interests that meet the need to act and, if achieved, will largerly satisfy the various policy demands.

On planning, I would love your thoughts on chapter 7 (paragraphs after 7-13), in particular.

There is a difference between "conventional wisdom" and "wisdom du jour". Doctrine written with the latter as inspiration is categorically useless...or at the very least, a hell of a lot less useful than the writers imagined. Leaving people, like me and many others on this forum, who have to operationlize it in the dark and resorting to using the fashionable buzzwords such "doctrine" produces to scratch our bosses' itches.

Grant:

Throughout this article, I note the word "transitional."

This suggesting, as per your comment above, that:

a. While we still feel that "the essence of the manual is good" (the purpose of counterinsurgency is to use the opportunity presented by the conflict to transform the subject state and society more along modern western political, economic, social -- and justice -- lines),

b. It (the manual) must reflect the "lessons learned" from OEF and OIF as of 2011. (To wit: that going DIRECTLY from non-western to western political, economic, social and justice models may be too difficult for many populations to achieve; this, potentially leading to various adverse results -- example: population being driven into the hands of the insurgents.)

Thus, the discussion of "transitional" measures, which do not (as you point out) question, challenge, change or eliminate the overall goal (see "a" above) but, instead, only suggest various "interim" measures which might be used to make this transition (from a non/less-western to a modern western way of life/way of governance) less difficult/more feasible.

This, in effect, being the "essence" of the new counterinsurgency manual -- and a summation of what we believe to be the "lessons learned" from our recent counterinsurgency activities?

We added goals supporting traditional/informal justice to our strategy while I was Chief, Rule of Law at ISAF. We were impressed by USAID's success with these programs in Nangahar Province. They were clearly more welcomed by the people than formal justice efforts. I stressed the importance of being "outside the room" - providing communications, transportation, and security - rather than "inside the room" - participating in the discussions themselves. As a result, these efforts build capacity. Formal justice is important, but plays a smaller role in Afghan society than our initial plans had anticipated. We used to joke, darkly, about "build it and they will come." In fact, they never did come to the formal justice sector, viewing it merely as an extension of the Karzai regime, and not an effective means of dispute resolution. Marty

Afghanistan had too many wonks and too many foreign ideological factions to begin with… it was 'NATO's' reconstruction for too long, and too many conflicting US domestic political variables worked against us. When the last COIN field manual was being debated, the 'USAID' or development aspect was poorly understood by the traditional military contributors… They just couldn't get their heads around the notion that military forces and intelligence wouldn't be able to delegate to civilian counterparts without an independent oversight entity. (It doesn't make me happy to have been proven correct… mainly because the DoD STILL can't accept the obvious "lessons learned".