Tom Nachbar on "Law as a Means to Counterinsurgency: Practical Considerations"

By Robert Chesney
Sunday, January 9, 2011, 10:27 PM

[This is the second of two posts from Tom Nachbar of the University of Virginia on the topic of lawfare.  In addition to his role as a law professor at UVA, Tom has the distinction of serving as an Army JAG who has worked and written extensively on rule of law-related issues.  Check out his paper "Defining the Rule of Law Problem," which is based on a chapter he wrote for the Rule of Law Handbook: A Practitioner's Guide. His earlier post appears here.]

In my last post, I suggested that there are four distinct ways in which law is used in counterinsurgency and that most uses of law in counterinsurgency, because they both depend upon and strengthen the law’s legitimacy, are unlikely to harm the authority of the law. In this post, I’d like to explore some of the practical implications highlighted by breaking uses of the law down into those four categories.

Recognizing the close relationship between what I would  call “direct” uses of law (applying the law in the conduct of operations against the enemy) and “indirect” uses (such as building the capacity of host nation legal institutions to both fight insurgents and build the government’s legitimacy) explains a lot about the development of coalition “rule of law” efforts in both Iraq and Afghanistan. In both Iraq and Afghanistan, major, centralized “rule of law” development efforts grew out actual detention operations. Both Task Force 134 in Iraq and CJIATF-435 in Afghanistan were originally charged with the specific problem of managing coalition detention operations before they were eventually expanded to include a dedicated, host-nation-focused capacity-building capability, with the Rule of Law Field Force (ROLFF) commanded by Brigadier General Mark Martins (whose posts on the meaning of “lawfare” largely prompted my own) being the most noteworthy expansion and dedication of effort to the latter task. That seems like an obvious progression to make when one considers the situation on the ground in both countries, but it has had important implications for how those capacity building operations have been undertaken.

The progression in both conflicts has converted the natural operator of detention facilities during armed conflict (coalition military forces) into a not-so-natural provider of justice sector capacity building. The mantra of capacity building, including justice sector capacity building, is that civilian agencies should take the lead. But the use of law as a tool of direct action against insurgents has deeply connected coalition military forces to the operation of both the Iraqi and Afghan justice systems. Having found themselves in that necessarily close relationship, coalition military forces are in a prime position to engage their Iraqi and Afghan counterparts in capacity building and they have understandably done so.

Not everyone is happy with this development, viewing it as the “militarization” of rule of law capacity building, but it is a predictable consequence of these particular conflicts. The structure of more recent efforts reflects and responds to this concern. CJIATF-435 (the “I” in CJIATF stands for “interagency” – U.S. bureaucracy-speak for efforts that include multiple civilian agencies) has both U.S. and Afghan commanders and a U.S. civilian deputy commander. The new ROLFF is a largely military organization, but its mission is specifically to enable Afghan civilian authorities; its military character is a by-product of the need to operate in areas of the country that call for military security. It would be hard to argue that its commander, General Martins, whose previous assignments include extensive work with U.S. civilian agencies, most recently as executive secretary of the presidential, interagency Detention Policy Task Force [a personal disclaimer: I briefly served on the staff of the that task force in the summer of 2009 during my Army Reserve annual training], is unaware of the need for Afghan and civilian leadership in developing Afghan legal institutions. Many of the ROLFF’s programs would disabuse anyone who thought it was following a “militarized” concept of criminal justice; many of the most notable programs involve vocational and agricultural training for detainees so that they have a viable economic alternative to serving as hired fighters for the insurgency. The mission, structure, means, and leadership of organizations like the ROLFF should mitigate the irritation felt in some quarters about extensive involvement of the U.S. military in Afghan justice system capacity building efforts, but concerns about militarization are unlikely to be fully eased so long as such missions are conducted in the context of ongoing, active armed conflict.

As the conflicts in Iraq and Afghanistan have progressed, earlier direct efforts to bring about the rule of law have evolved into more sophisticated, indirect efforts. The military’s centrality to the latter is a consequence of its necessary centrality in the former. The question is how concerned we should all be by this development. I don’t think there’s a clear answer to that question. Simply building up the development capabilities of American civilian agencies is an incomplete solution, since they are unlikely to be in the position of undertaking direct effects on insurgents during armed conflict and therefore unlikely to have the opportunity to develop the same types of close working relationships with host nation officials (although they certainly have other opportunities to develop other types of close working relationships). The question is whether we should ignore this natural point of transition between direct and indirect uses of law. That is the logical implication of arguments against developing a robust military capacity to engage in justice sector capacity building (it is also an implication to a lesser degree of arguments for locating military development capabilities exclusively in specialist organizations, such as military civil affairs units).

The inaugural Quadrennial Diplomacy and Development Review understandably largely ignores the military role in justice sector capacity building, but it nevertheless sets the right tone: Success in these highly complex engagements requires effort on all fronts. That includes making sure that the military can take as active a part in capacity building as it does in using the law for direct action on insurgents. If not, we are likely to not only be less effective counterinsurgents but also rely too heavily on law’s direct effects without considering its indirect effects. As I argued in my last post, such a limited strategy – one that emphasizes law but not efforts to enhance its legitimacy – is the greatest threat to law’s authority when used as a means to counterinsurgency.