New battlefields/old laws: shaping a legal environment for counterinsurgency.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 10:45 a.m., Friday, March 25, by its moderator, William C. Banks of the Institute for National Security and Counterterrorism, Syracuse University College of Law, who introduced the panelists: Ashley Deeks of Columbia Law School; Rich Gross of the United States Central Command; Sarah Sewall of Harvard Kennedy School of Government; and Robert D. Sloane of Boston University School of Law.


Welcome to the panel called "New Battlefields/Old Laws." We have a very distinguished panel today. I'm going to make my introductory remarks very brief, turn it over to the panel for short 10-to-15-minute set pieces, and then we'll have a free-wheeling discussion, I think, on the subject of counterinsurgency.

We live in a post-modern era of warfare where small-scale, often intrastate conflict is increasingly becoming the norm. While the modern era conceived of war and war-fighting as a large-scale interstate conflict waged between mass professional armies, the post-modern era perceives conflict quite differently. Technological advantage, massive fire power, and physical maneuver can count for little in the effort to gain. It turns out that those conflicts, however, can be just as deadly and as strategically significant as conventional warfare.

The reality of post-modern warfare in what has been occurring in post-conflict Iraq and Afghanistan in recent years is that these conflicts are typically manifested as small internecine warfare where nonstate actors employ asymmetric means against state military forces. The environment in which this warfare occurs is one of mixed war and peace. The deployment of armed forces by the state within those conflicts has been difficult to reconcile with first-order conventional warfare, training, and preparation. The conflict has been described in various ways by states as operations other than war--peace enforcement, wider peacekeeping, low-intensity conflict--there are as many names and acronyms as there are changes or differences in conflict. The terms are not interchangeable. Of course, they differ according to legal and doctrinal authority and the nature of the deployment, but they share some elements which separate them from conceptions of conventional war.

In encountering an insurgency, as we've learned in recent years in the United States, traditional thinking on combat and the application of overwhelming force act as negative factors. The COIN Manual (the manual for counterinsurgency operations) that's been part of the U.S. operational environment in recent years, talks about the contest taking place not on a field of battle, but in a complex civilian environment. No longer primarily a military contest, the war instead is part of a war of ideas, a battle largely won for perception. The key battleground is in the minds of the indigenous population and the minds of the region and the world. Among the stark differences that need to be confronted in counterinsurgency are fundamental principles of distinction and proportionality, which will be central to the discussion that we're going to have here this morning.

The order of presentation here this morning is: first, Colonel Rich Gross from the Central Command at CENTCOM at Tampa. Rich is a graduate of West Point and the University of Virginia School of Law. He has had a number of jobs as a judge advocate, including with the 101st Airborne as a litigation attorney. He made the rounds with a number

of operational assignments inside his JAG postings, but he's most recently served as the Chief Legal Advisor for the International Security Assistance Force (ISAF) in Kabul, Afghanistan, and as the SJA for U.S. Forces, Afghanistan. He had multiple combat deployments both to Iraq and Afghanistan, also has a master's in strategic studies from the Army War College at Carlisle, and has numerous awards and decorations.

After Colonel Gross, Professor Rob Sloane here immediately to my right will speak. Rob is at the Boston University School of Law. This term he's visiting at Harvard Law School as the John Harvey Gregory Lecturer in World Organization. He has also previously visited at the University of Michigan. He has a diploma in public international law as well from the Hague Academy of International Law. Rob has written and lectured extensively on public international law topics, particularly in the area central to this panel, "The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War."

Next, Ashley Deeks, at the far end of the table, who is an Academic Fellow at Columbia Law School, will speak. Before joining Columbia in 2010, she was Assistant Legal Adviser in the State Department, where she worked on issues related to the law of armed conflict, use of force, conventional weapons, and the framework for the conflict with Al Qaeda. She has provided advice also on intelligence issues. Otherwise, at State prior to that assignment, she advised on international law enforcement extradition and diplomatic property questions. She also served in the embassy in Baghdad during 2005 in the constitutional negotiations, and has received numerous service and meritorious service awards at State. She's been at the Council of Foreign Relations and was a visiting Fellow at CSIS. She has written several articles on the Iraqi constitution, administrative detention, and the laws of war. She told me earlier that she's working now on an article on jus ad bellum problems that perhaps she'll discuss here today.

And last, but not least, Sarah Sewall, in the middle of the table here, teaches international affairs at the Harvard Kennedy School, where she also directs the program on national security and human rights. Dr. Sewall is the founder and faculty director of the Mass Atrocity Response Operations project. She's leading the study now on civilian casualties within the United States military. She led the Obama transition National Security Agency review process in 2008. During the Clinton administration, she served as First Deputy Assistant Secretary of Defense for Peacekeeping and Humanitarian Assistance. She has had a number of other previous appointments and has produced many publications, including the introduction to the University of Chicago edition of the U.S. Army and Marine Corps Counterinsurgency Manual, and with John White, Parameters and Partnership: U.S. Civil-Military Relations in the 21st Century.

So let's get started. Rich, I'll turn it over to you.


Thanks, Bill. Thank you very much for the opportunity to come speak to you today, I appreciate it. It's a real honor to be here, particularly with this distinguished panel.

Bill said that if you think about the title, it's "Old Laws/New Battlefield," and I'm not sure that's entirely accurate. I'm not sure we'd call this a new battlefield. Certainly, counterinsurgency has been around for a while. It perhaps is new to us. I think most commentators, and I personally, would think that we forgot the lessons of counterinsurgency that we learned in Vietnam; we certainly forgot the lessons of counterinsurgency that the French learned in Algiers and other places; and it's not a new form of battle. Certainly, there are other battlefields that are new that we're not going to talk about today, whether it's cyber, whether it's counterterrorism, and so forth, but counterinsurgency, I think, is one that is perhaps not new, but is new to us, so in that respect, I'm going to talk about that.

The first thing I thought I would lead off with--and it kind of gels with some of the topics I'm going to talk about, what we did on the ground in Afghanistan to develop policy to fill in the gaps where the law and broader national policy didn't cover--is to read to you from the field manual, which I know right away you're starting to go to sleep--


--but I will read a couple of things from the field manual, from one of the more interesting parts actually, of General Petraeus's Counterinsurgency Field Manual, which was just published about five years ago, called "The Paradoxes of Counterinsurgency." If you're interested, there are nine of them, and you can Google them and they'll pop up in a New York Times article and several other places. These are just a couple that relate to the use of force, and you'll see why I'm going to talk about these in a minute. The first ones are, "Sometimes the more you protect your force, the less secure you may be." "Sometimes the more force is used, the less effective it is." "The more successful a counterinsurgency is, the less force can be used and the more risk must be accepted." "Sometimes doing nothing is the best reaction." "Some of the best weapons for counterinsurgence do not shoot." And, finally, one of the other ones, "Tactical success guarantees nothing." General McChrystal used to have another way of putting that: "Sometimes tactical successes can create strategic defeats." You'll see that line in the Tactical Directive, which is one of the things I want to talk about.

If you think about how we translate international humanitarian law or the law of armed conflict in the military, we take that and we turn it into policy, and most of the time for the soldiers, for the Marines, for the airmen who are actually out there at the tip of the spear, we turn that into the rules of engagement- So with principles like proportionality and protected places and the other things you're very familiar with in the law of armed conflict, for the soldier, we put out rules of engagement, and we tell them, "Here's when you can shoot and here's when you can't shoot," "Here's a place you can go and here's a place you can't go." For example, in the rules of engagement, which are classified, but, no surprise, this part isn't: you can't enter a mosque as an American service member in Iraq or Afghanistan. You're just not allowed to do it. And so that's in the...

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