Why the Counterinsurgent Cannot Follow Counterlawfare in Counterinsurgency

A response to Shane Bilsborough's Counterlawfare in Counterinsurgency.

There is a romantic belief in some portions of society that if the “correct” laws are passed, then people will suddenly behave lawfully. That seems to be the thinking of Shane Bilsborough’s article Counterlawfare in Counterinsurgency. The article will show that trying to “leverage” international legal institutions, media outlets, human rights NGO’s to “assist” a government’s counterinsurgency efforts will fail and cause a wave of bad publicity and international condemnation if attempted. While not advocating abandoning any standards of conduct this article will also show that insurgents can and do ignore, with impunity, international standards of war conduct, and that the net effect is that there is a unilateral standard that ends up favoring the insurgent.

An insurgency occurs when a leader who is unable to get his way through traditional means resorts to violence. As stated in FM 3-24 The U.S. Army Marine Corps Counterinsurgency Field Manual, “…an insurgency is an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government.” Further 3-24 states, “Insurgents use all available tools – political (including diplomatic), informational (including appeals to religious, ethnic, or ideological beliefs), military and economic- to overthrow the existing authority.¹” Bilsborough’s article states, “Counterinsurgency theory and historical experience both suggest that international legal institutions, media outlets, human rights NGO’s, and other supposed pawns of insurgent “lawfare” strategies can and should be leveraged to the United States advantage in low-intensity conflict as part of a focused and coherent “counterlawfare” strategy.”

The U.S. Army, international legal institutions, media outlets, and human rights NGO’s, are all different organizations with different end goals, motivations, and belief in “what is right.”  There is a difference in mission, how to carry out that mission, and accountability to other institutions. Attempts to “leverage” international legal institutions, media outlets, and human rights NGO’s, by the U.S. Army may be actively blocked so that the organization can be seen as “neutral,” by the world community, or more, importantly the financial backers of such organizations. Insurgents can violate the international norms and manipulate the various multinational organizations because they are outside the bounds of social organization and control; they are accountable to no one. For world power or any sub element attempt to manipulate or “leverage” international legal institutions, media outlets, and human rights NGO’s would have global implications and led to worldwide condemnation.

Human Rights NGO’s, are small organizations, who try to effect social change through grants and programs that further the NGO’s purpose. They don’t have police powers; they have no ability to enforce standards. They have only the power to chastise, and to extort compliance through withdrawal of monies and programs, and revealing transgressions of acceptable conduct and violations of human rights. In other words, human rights NGO have the ability to create bad publicity for a government, and only in a government that cares about world opinion. A government that has been accused of a human rights transgression may face diplomatic repercussions, economic sanctions, loss of tourism, or even boycotts. Insurgents, with no diplomats, cannot be directly chastised by other governments. As insurgents get most of their logistic needs either from the populace or through smuggling, they do not have to worry about economic sanctions. A reduction in tourism does no economic harm to an insurgency. Boycotts of goods, either bought or sold, have no negative impact on an insurgent. In fact all the actions that human rights NGOs can take will only help the insurgency.

The insurgent tends to have the upper hand in the media war, due the interest in tragic events. News is just that; it’s new, a band of insurgents burning down a remote police station and stealing the police weapons, is far more interesting than a report that the police captured bandits attempting arson and theft. FM 3-24 states, “Insurgents have an additional advantage in shaping the information environment,”² which is true as the insurgent determines when and where an attack will or will not occur. The insurgent is in a much better position to dictate terms of media access than any government. As a smaller organization there are few information gatekeepers and it’s easier to speak with one voice. Media outlets that provide the most favorable coverage to the largest audience will be given access. Negative reports may even be met with violence. In a country with a mildly free press, the government, will be forced to give access to all media regardless of affiliation, or risk long diatribes complaining about “government secrecy,” and “media repression,” that will, again, embarrass the government in the eyes of the rest of the world. To maintain international legitimacy the government cannot afford to be heavy handed with the media, regardless of the accuracy of reports, nor the side chosen. Insurgents with no legitimacy to begin with have no such restrictions. Insurgent groups can and do kill journalists, like Daniel Pearl, and still the media report their stories. The government must maintain legitimacy in the local area, the country, and internationally. The insurgent only has to have the appearance of legitimacy in the area they occupy.  Robert Taber in “War of the Flea,” writes, “The [insurgent] is primarily a propagandist, an agitator, a disseminator of the revolutionary idea,” ³ which is a far more interesting story than one from a government that states “all is calm.”

Traditionally the media abhored, and actively avoided, being used as a tool of a government or institution. Reporters typically pride themselves for remaining neutral. The News Values Statement of the Associated Press states,  “we avoid behavior or activities that create a conflict of interest and compromise our ability to report the news fairly and accurately, uninfluenced by any person or action.⁴” Reuters states that, “every source who talks to a Reuters reporter has a motive. Try to identify that motive and the ‘spin’ that comes with the information, and weigh it against other information you have obtained, generally known background and your own common sense to work out the real story. Your own suspicious mind is one of the best defences against being manipulated. Talk to sources on all sides of an issue, business deal, political dispute, military conflict or diplomatic negotiation.⁵” That means that Bilsborough’s  suggestion, that, “One promising idea would be to make a concerted effort to provide media organizations with ample visual evidence of insurgent human rights abuses. In this regard, deploying media teams tasked with recording these abuses and bringing them to the attention of war correspondents, whether in the form of recorded video or actual tours of the sites of insurgent human rights abuses, would be a masterstroke,” would fall flat as there would be the suspicion of staging or attempts to propagandize. The media goes where they believe the story is, not at the behest of any outside organization.

Lastly the media has an audience; reports of atrocities that happen in remote locations that the audience isn’t concerned about will get short shrift. A story of insurgents massacring villagers may be tragic, but not necessarily newsworthy. There is little new about insurgents committing atrocities.  Such stories may be actively ignored. However, reports of massacres that have even the slightest connection to a government are far more interesting, and more likely to be published and followed up upon.

International legal institutions have only the power to prosecute if the insurgent can be captured and sufficient evidence exists. Article Three of the Geneva Convention lists insurgents as non- combatants and leaves open the option that they may be prosecuted as  criminals. Insurgents already know their choice when they hoist the bloody flag of revolution: victory or death. The threat of jail time, is not much of a deterrent. Further, while a government is liable for the actions of its agents, insurgencies are not governments and only the individual is responsible for his actions, and not normally at an international level.

Bilsborough quotes William G. Eckhardt, “Although the United States is not likely to lose militarily on the battlefield, the United States is far more vulnerable in the world court of public opinion. Knowing that our society so respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans as illegal and immoral and our execution of those plans as contrary to the law of war,” ⁶ while missing the point that insurgents are rarely, if ever, held to account for their actions on an international level.

The author inadvertently demonstrates this very point by using the example of the 1987 Intifada. The author writes, “The Palestinian Intifada, beginning on December 8, 1987, is a prime example of true lawfare in the context of insurgency.” The uprising occurred almost spontaneously and grew in size and ferocity, “Another Israeli military compound was surrounded and pelted with Molotov cocktails and stones by enraged locals.”⁷ Throwing rocks at a police officer is assault, and the officer has the legal and moral authority to stop the assault. An attack on the military and military installations by agents of a government is an act of war. The demonstrations were not stopped by Palestinian authorities, who had no legal obligation to do so. “The first action taken by the Palestinian Authority was to order their armed units to attacks Israeli patrols and installations⁸.” While that didn’t occur, the riots continued. However, as the Palestinian Authority is not a recognized government, they are not legally liable, as an institution, for the conduct of the Intifada participants.

One thing that is overlooked is that the Palestinians did use weapons, slings⁹. While an old weapon the slung stone is quite lethal. Slingers were found in armies until the High Middle Ages.  An experienced slinger can throw projectiles at speeds over 90m/s^10,11. The impact force of a sling projectile can cause internal bleeding and even crush bones^{12, 13}. So, while the IDF (Israeli Defense Force) was under assault by weapons that can crush and even kill, even though primitive, it appeared that the IDF was using excessive force when they pointed their weapons at what was reported as “children throwing rocks.” The use of children (again if the Palestinian Authority did nothing to stop the riots they are implicitly condoning them) as combatants may be a violation of international law, but that only applies to sovereign, recognized nations.  In other words if Israel conscripted 14 year olds into its military it would be in violation of  Article 8(2)(a)(xxvi) of the Rome Statute of the International Criminal Court, but the Intefada, as a group, whose members had children attacking the IDF is immune from prosecution.

It was not the law or international legal standards that the Palestinians were using against the IDF, but the appearance, the image, of excessive force. In fact the Palestinians went further, “demonstrators would often interpose woman and children between IDF units and demonstrators when international media, particularly of the televised variety, was present.”¹⁴ This gave graphic pictures and news reports to the media who published articles and segments daily, show what appeared to be excessive force by the IDF. The use of human shields (unless they volunteer) is a violation of  The Fourth Geneva Convention, however the convention only applies only to signatories, insurgents not being a government, are not parties to treaties and conventions, and can’t be held to the same standard as a government.

In the end the Intifada was successful because while the IDF were correct legally. The images of soldiers shooting at “rock throwing children,” was more than the world could bear and Israel’s international legitimacy was threatened. Israel could have easily and legally stopped the riots, but they could not do so while maintaining moral legitimacy in the eyes of the rest of the world. The fact that the Palestinian Authority did nothing to control the riots or prevent the use of children as combatants. Nor did it prevent the use of human shields. This did not hurt the Palestinian Authority, as they had little to no international legitimacy, nor any international legal responsibilities to restore order. The Palestinian Authority achieved a perceived moral victory by making it appear that excessive force was used, while it suffered no repercussions for their own actions. Bilsborough fails to realize that there was little that international legal institutions, media outlets, or human rights NGO’s could do to reign in the excesses of the Palestinian Authority. But they could, and did, harm the ability of the IDF to control the riots. Bilsborough even writes “This sort of image consciousness, underpinned by the local Palestinian leadership’s understanding of international human rights law, assured the eventual success of the first Intifada,” completely missing the fact that while the Palestinian Authority violated multiple statutes of international law, they were able to do so because they are not a government, they had no legitimacy to lose. No one was going to be tried in international court for human rights violations. It was the image of a soldier pointing a weapon at a child that was the reason for the success of the Intifada.

In the end trying to “leverage” international legal institutions, media outlets, and human rights NGO’s to “assist” a government’s counterinsurgency efforts will fail and cause a wave of bad publicity and international condemnation if attempted. International legal institutions, media outlets, and human rights NGO’s are all autonomous organizations. The word leverage indicates a degree of control, which is neither possible nor desired.  International legal institutions can only assist after the fighting stops and only if an onerous set of conditions are met. The media is fiercely independent, and will avoid all attempts to co-opt them. Human right’s NGO’s can only embarrass organizations that are embarrassable. The best a counterinsurgent can do is ensure it doesn’t run afoul of  international legal institutions, media outlets, human rights NGO’s and let them do their job.

The views expressed in this article are the author’s and do not necessarily reflect the views of the U.S. Army, the U.S. Department of Defense, or any other governmental agency.

Bibliography

1. The U. S. Army Marine Corps Counterinsurgency Field Manual (Chicago,IL Chigao Universoty Press 2007), 2.
2. Ibid, 5
3. Robert Taber, War of The Flea: The Classic Study of Guerrilla Warfare (Dulles, VA: Potomic Press 2002), 12
4. http://www.ap.org/newsvalues/index.html. Retrieved on 23 Dec 2011.
5. http://handbook.reuters.com/index.php/The_Essentials_of_Reuters_sourcing. Retrieved on 23 Dec 2011.
6. William G. Eckhardt, "Lawyering for Uncle Sam When He Draws His Sword," Chicago Journal of International Law 4, no. 2 (2003): 441.
7. Thomas X. Hammes, The Sling and the Stone: On War in the 21st Century (St. Paul, MN: Zenith Press, 2004), 90.
8. Ibid, 91.
9. http://occupiedpalestine.wordpress.com/2011/12/08/the-first-intifada-%D8%A7%D9%86%D8%AA%D9%81%D8%A7%D8%B6%D8%A9-in-pictures-intifada1/ Retrieved 23 Dec 2011.
10. Gabriel, Richard & Metz, Karen (1991). From Sumer to Rome: The Military Capabilities of Ancient Armies. Westport, CT: Greenwood Publishing Group.
11. Richardson, Thom (1998a). Ballistic Testing of Historical Weapons. Royal Armouries Yearbook 3, p. 50-52.
12. Ferrill, Arther (1985). The Origins of War, From the Stone Age to Alexander the Great. London: Thames and Hudson Ltd.
13. Grunfeld, Foster (1996). The Unsung Sling. Military History Quarterly, V9 #1. p. 51-55.

Thomas X. Hammes, The Sling and the Stone: On War in the 21st Century (St. Paul, MN: Zenith Press, 2004), 103.