Counterinsurgency, the War on Terror, and the Laws of War

Abstract

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas - from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates.