Counterinsurgency and Stability Operations: A New Approach to Legal Interpretation

• Author: Dale Stephens
• Position: Captain, CSM, Royal Australian Navy
• Pages: 289-321

XIV

Counterinsurgency and Stability Operations:

ANew Approach to Legal Interpretation

Dale Stephens*

Introduction

Welive in the postmodern era of warfare, 1where small-scale, intra-State

conflict is increasingly becoming the norm. While the modern era con-

ceived of war and warfighting as alarge-scale, inter-State conflict waged between

massed professional armies,2the postmodern era perceives conflict as "war among

the people"3where technological advantage, massive firepower and physical ma-

neuver can count for little in the struggle for ascendancy.4It turns out that such

conflict can be as deadly and as strategically significant as conventional warfare.

The US military in its recent reconceptualization of how such wars are to be ef-

fectively engaged (and how victory is to be meaningfully measured) has embraced

the realities of the emergent postmodern style of warfare. The recently published

U.S. Army/Marine Corps Counterinsurgency Field Manual5and its companion vol-

ume, The U.S. Army Stability Operations Field Manual,6portray asomewhat

counterintuitive model for prevailing in these postmodern conflicts. Significantly,

the methodologies these manuals espouse are written against the background of

bitter experience of conflict in Iraq and Afghanistan. Indeed, partially through ne-

cessity, these doctrines emerged from reflection about these conflicts and took

*Captain, CSM, Royal Australian Navy. All views expressed in this article are solely those of the

author and do not necessarily reflect the views of the Australian government, Department of

Defence or Royal Australian Navy.

COIN and Stability Operations: ANew Approach to Legal Interpretation

account of "counterinsurgency best practice."7The tactics and doctrine reflected

in these manuals worked to stave off near defeat, especially in the Iraq theater of

operations during the 2007 "surge."8

Paradoxically, while military doctrine has managed aself-conscious leap in per-

spective regarding means and methods of warfare, there has been acorrelative lack

of innovation within established mainstream legal thinking, at least in the prevail-

ing literature.9Aformalist methodology of interpretation and acontinued com-

mitment to the attritional focus of the law of armed conflict (LOAC) remain the

prevalent orthodoxy, notwithstanding that such binary thinking has proven to

have had limited utility within counterinsurgency (COIN) and stabilization opera-

tions. There is plainly aneed for renewed thinking, or at least an appreciation ofthe

direction warfare is going, so that interpretative techniques employed in LOAC

may be reimagined and recalibrated in order to remain relevant to operational

realities. This paper seeks to facilitate that process.

Part Iof the paper will survey the themes contained in the counterinsurgency/

stability operations manuals and will contrast these to the prevailing intellectual

framework which underpins LOAC. Part II examines the key principles of "dis-

tinction" and "proportionality" under LOAC and argues that a reconceptualized

interpretative approach to implementing these principles is required. Aparticular

emphasis will be placed on the rules/standards dichotomy in order to better reveal

the limits of formalist thinking. Finally, Part III will canvass the challenges and

choices available to an operational legal advisor when operating during COIN/

stability operations consistently with revised doctrine.

Part I. COIN and Stability Operations: ANew Doctrinal Paradigm

Counterinsurgency Doctrine

The strategic-political realities of the Cold War prompted preparation for large-

scale, inter-State "industrial" warfare. 10 Technology, firepower and maneuver

were key elements in designing effective and efficient combat for massed profes-

sional armies. Rationalist strategizing provided the necessary gestalt and the "tools

of modernity" 11 were expected to deliver operational success. According to Lieu-

tenant General Sir John Kiszely, it was amodel that relied upon "more advanced

technology, firepower, lethality, speed, stealth, digitization, logistics, network-

centric warfare [and] hi-tech 'shock and awe/" 12 These features still underpin the

requirements of fighting conventional warfare. Indeed, conventional warfare still

occurs, but is not the likely anticipated scenario for future warfighting.

The reality of postmodern warfare is what has been occurring in "post-conflict"

Iraq and Afghanistan in recent years. Such conflicts are mostly non-international

290

Dale Stephens

in character and are typically manifested as small internecine warfare where non-

State actors employ asymmetric means against State military forces. The envi-

ronment in which this warfare is undertaken is one of mixed peace and war. The

deployment ofarmed State forces within such conflicts has been difficult to recon-

cile with "first order" conventional warfare training and preparation. Such conflict

has been variously described as, inter alia, "military operations other than war"

(MOOTW), peacekeeping, peace enforcement, "wider peacekeeping," low intensity

conflict and "gray area operations."13 These terms are not interchangeable, as they

differ according to legal and doctrinal authority and the nature ofthe deployment,

but they all share common elements which separate them from conceptions of

conventional warfare. These operations have required different and more nuanced

skills, though it was thought that conventional warfare training could be "ratcheted

down" to apply to such operations. 14 Such assumptions were not well placed.

The US COIN Manual grapples with the new realities of postmodern war and

recommends decisive change. Indeed, the introduction to the manual makes it

very clear that it is intended to be "paradigm shattering." 15 Within the first para-

graph of the introduction, the point is forcefully made that "[t]hose who fail to see

the manual as radical probably don't understand it, or at least understand what it's

up against." 16 The manual provides that while all insurgencies are sui generis, there

are common characteristics that apply to all and there are patterns of operational

response that have been proven to be effective. The manual evidently borrows from

classic counterinsurgency works relating to the British experience in Malaya17 and

the French experience in Algeria, 18 and it also updates the work that had been un-

dertaken during the Vietnam conflict. 19 Most significantly, it draws upon contem-

porary experience in Iraq and Afghanistan in detailing anumber of principles

labeled "paradoxes of counterinsurgency operations" 20 that provide aconceptual

framework for operational planning.

In very clear terms the manual outlines the elements of an insurgency and iden-

tifies the requirements that must be met in order to prevail. The doctrine is con-

frontational and counterintuitive to that which is required for conventional

warfare. The manual painstakingly describes that an insurgency is fundamentally a

political struggle, where the center ofgravity is the population, which remains "the

deciding factor in the struggle."21 It is asserted that insurgents invariably use unlaw-

ful means to intimidate the population and discredit the legitimate government.

Such unlawful means are designed to bring about an overreaction by counterinsur-

gent forces. Violence is the currency of an insurgency and destabilizing the legiti-

macy of the host-nation government and its supporting counterinsurgent forces a

strategic goal.22 Provoking violation of counterinsurgent ethics and values in react-

ing to an insurgency is ameans to secure that goal. This perspective is highlighted

291