I agree with Lieutenant Colonel Steven Alexander’s article, Transition While Conducting Counterinsurgency Operations, that “effective transitions are critically important when conducting counterinsurgency”. I also agree the “current doctrine and methodology does not provide sufficient guidance to capture the complexity of prosecuting these actions within a non-linear environment and until it does the actions of any COIN element will be unsynchronized.” I feel one of the examples that demonstrate the complexity and the lack of synchronization is the transition or at least the relationship between the “Rule of Law” and the “Laws of Armed Conflict” in COIN operations.

The Rule of Law “is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed law adopted and enforced in accordance with established procedural steps that are referred to as due process”. For example, killing civilians is considered murder and the concepts of legal equality, presumption of innocence, Habeas Corpus, etc. are in play. The Rule of Law is also supported by a complete system of police, lawyers, prosecutors and judges.

The establishment of the Rule of Law is a COIN objective because the insurgents may have eliminated the legal system as one of their objectives. This is particularly true when it comes to COIN “Clear-Hold-Build” stages. The “Clear” part of the equation falls squarely on the shoulders of the military. Their responsibility in a clear operation is to eliminate or at least surpress the insurgents military wing. One of the operational needs for this tactic is that the “Rule of Law” for the clear area, has been eliminated and does not exist. In other words, the host country not longer has legimate control of the clear area. Because the Rule of Law does not exist, the military will apply the Laws of Armed Conflict in the rule of law vacum.

“International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.”

Under the laws of armed conflict killing civilians is to be avoided but can occure because of the need of “military necessity”. “Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict. Military necessity is governed by several constraints: An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective,, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.”

If we take into consideration, the number of legal cases and investigations initiated against soldiers and Marines because of civilian casualities in both Iraq and Afganistan, the issue is becoming very prominant. Haditha is probably the best example. Clearly, the Haditha, 3/1 Marines , were conducting a “Clear” operation under the Rules of Armed Conflict and in the absents of the Rules of Law.

Haditha was declared a TAZ (Temporary Autonomous Zone) when the Marines deployed to the area in 2005. A TAZ is a lawless zone that is a major source of funding, manpower and supply for the enemy; in other words, there is absolutely no Iraqi government control.
The first Haditha investigation (Col Watt’s Investigation) , did not find any Rules of Armed Conflict violations. Yet, the Marines were originally charged with unpremeditated murder, negligent homicide and assault, all of which fall under the Rules of Law. Because no evidence existed, under the Rules of Law, the charges against the enlisted Marines were dismissed.

In this case, because the Marines are attack in an ambush, and the enemy is using civilians as human shields, the resulting civilian causalities fall under the rule of military necessity. Yet, there is no discuss or analysis of military necessity in any of the Haditha investigations. If the transition plan existed and included the move from the Rules of Armed Conflict to the Rules of Law, it is very possible that the military leadership could have avoided a public affairs disaster for the Coalition Forces and the Marine Corps.

Another consideration is if the transition has occurred, and the military force is in over watch, what applies if a US military unit is re-committed to fighting insurgents that the local police can’t handle. Do they fight under the Rules of Law (and which law, Host Nation’s or ours) or the Rules of Armed Conflict? It would seem that the transition plan will need to include a contingence for this occurrence allowing the unit to fight under the Rules of Armed Conflict with some sort of “Inter arma silent leges: in time of war the law is silent” agreement on place.