The Rule of Law and the New Counterinsurgency Field Manual
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.