The Use of Law in Counterinsurgency

• Author: Thomas B. Nachbar
• Position: Professor of Law, University of Virginia School of Law; Senior Fellow, Center for National Security Law
• Pages: 140-164

140 MILITARY LAW REVIEW [Vol. 213

THE USE OF LAW IN COUNTERINSURGENCY

THOMAS B. NACHBAR*

I. Introduction

Almost no aspect of the current conflict has received as much

attention as the “rule of law”.1 The “rule of law” has had its presence felt

from the legal contests over detention that started almost immediately

after the invasion of Afghanistan and the opening of the detention facility

at Guantanamo Bay,2 to the breakdown of law and order in the lost

“golden hour” following the invasion of Iraq in 2003,3 to the debates

over the legality of interrogation techniques practiced by the United

States,4 to the blood and treasure expended rebuilding the Iraqi justice

system and building the Afghan justice system.5 There have been

* Professor of Law, University of Virginia School of Law; Senior Fellow, Center for

National Security Law. The author also serves as an Army Reserve judge advocate in the

Office of the Judge Advocate General and as a civilian Senior Advisor to the Department

of Defense, Office of Rule of Law and Detainee Policy. The views expressed herein are

solely those of the author and do not necessarily reflect those of the U.S. Army, the

Department of Defense, or its components, or the U.S. Government.

1 In U.S. military doctrine, “Rule of Law” is defined as “a principle under which all

persons, institutions, and entities, public and private, including the state itself, are

accountable to laws that are publicly promulgated, equally enforced, and independently

adjudicated, and that are consistent with international human rights principles.” U.S.

DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS 1-24 (2008) [hereinafter

FM 3-07].

2 The first detainees were transferred to Guantanamo Bay in January of 2002; the first

petition for habeas corpus arising out of a Guantanamo Bay detention was filed on

January 20, 2002. See Gherebi v. Bush, 374 F.3d 727, 728–29 (9th Cir. 2004).

3 See William B. Caldwell IV & Steven M. Leonard, Field Manual 3-07, Stability

Operations: Upshifting the Engine of Change, MIL. REV., June 2008, at 56.

4 Barack Obama, Protecting Our Security and Our Values, Address at the National

Archives (May 21, 2009) (“I know some have argued that brutal methods like

waterboarding were necessary to keep us safe. I could not disagree more. As

Commander-in-Chief, I see the intelligence. I bear the responsibility for keeping this

country safe. And I categorically reject the assertion that these are the most effective

means of interrogation. What's more, they undermine the rule of law.”).

5 On the relationship between “rule of law” as a set of development efforts and “rule of

law” as an imperative for U.S. military operations, see Thomas B. Nachbar, Defining the

Rule of Law Problem, 12 GREEN BAG 2d 303, 318 (2009) (“[T]he definition of the rule of

law that drives the development effort may not be as important as the one that defines the

approach that U.S. forces take to their own operations. Successfully establishing the rule

of law has less to do with one’s definition of the rule of law than it has to do with one’s

commitment to the rule of law.”).

2011] USES OF LAW IN COUNTERINSURGENCY 141

countless rule of law advisors, multiple rule of law handbooks,6 “rule of

law green zones,”7 rule of law coordination cells,8 and most recently in

Afghanistan, both a rule of law ambassador9 and a one-star command—

the NATO Rule of Law Field Support Mission / Rule of Law Field

Force-Afghanistan10—dedicated to the rule of law.

Whether the rise of law’s role in this conflict is a good thing is the

subject of considerable debate. Many have derided the use of law by our

adversaries as underhanded and claimed that legal constraints weaken the

United States’ ability to conduct war, a view held not only by

commentators but by the executive branch itself.11 Over the last ten

years, law has become so heavily intertwined with warfare as to spawn

not only a new term—“lawfare”—but entire conferences debating the

significance of the term.12 Moreover, efforts to establish the rule of law

6 CENTER FOR LAW AND MILITARY OPERATIONS, THE RULE OF LAW HANDBOOK: A

PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES (2011 ed.) [hereinafter RULE OF LAW

HANDBOOK]; UNITED STATES JOINT FORCES COMMAND, HANDBOOK FOR MILITARY

SUPPORT TO RULE OF LAW AND SECURITY SECTOR REFORM I (2011) [hereinafter JFCOM

HANDBOOK].

7 See, e.g., Robert Chesney, General Martins on Rule of Law Green Zones, Afghan

Criminal Prosecution, and Other Updates from the ROLFF in Afghanistan, LAWFARE

(Feb. 10, 2011), http://www.lawfareblog.com/2011/02/general-martins-on-rule-of-law-

green-zones-afghan-criminal-prosecution-and-other-updates-from-the-rolff-in-afghan-

istan/ (discussing rule of law Green Zones in Afghanistan); Michael R. Gordon, Justice

From Behind the Barricades in Baghdad, N.Y. TIMES, July 30, 2007, at A1 (discussing

rule of law Green Zones in Iraq).

8 See Colonel Richard Pregent, Reconciling Security and Rule of Law While Coordinating

US Military and Civilian Efforts, in RULE OF LAW HANDBOOK, supra note 6, at 274–85

(discussing the “Interagency Rule of Law Coordination Cell” in the U.S. Embassy, Iraq).

9 Coordinating Director of Rule of Law and Law Enforcement, EMBASSY OF THE U.S.,

KABUL, AFGHANISTAN http://kabul.usembassy.gov/klemm.html (last visited Dec. 4,

2012).

10 See Mark Martins, Rule of Law in Iraq and Afghanistan?, ARMY LAW., Nov. 2011, at

21, 24.

11 See, e.g., NATIONAL DEFENSE STRATEGY OF THE UNITED STATES 6 (Mar. 2005) (“Our

strength as a nation state will continue to be challenged by those who employ a strategy

of the weak using international fora, judicial processes, and terrorism.”); David B Rivkin,

Jr. & Lee A. Casey, Lawfare, WALL ST. J., Feb. 26, 2007, at 15.

12 The term is generally attributed to Charles Dunlap, one-time Deputy Judge Advocate

General of the Air Force. See Charles J. Dunlap, Does Lawfare Need an Apologia?, 43

CASE W. RES. J. INT’L L. 121 (2010) (providing an overview of the term and its lifecycle.

Gen. Dunlap originally defined “lawfare” simply as “the use of law as a weapon of war”

but his definition has evolved over time to a “strategy of using—or misusing—law as a

substitute for traditional military means to achieve an operational objective”). Id. at 1.

See, e.g., Michael P. Scharf & Shannon Pagano, Lawfare!: Are America’s Enemies Using

Law Against Us as a Weapon of War?, 43 CASE W. RES. J. INT’L L. 1 (2010) (providing

information from conferences on the term).