Why Counterinsurgents Should Follow the Laws of War

Abstract

In recent years, however, many have argued that the United States and its allies in counterinsurgency and counterterrorism operations can ignore the laws of war. They argue that the laws of war are based on the concept of reciprocity between states, and because terrorists and insurgents do not comply with the law, the United States need not do so either. However, reciprocity in the laws of war is based on strategic premises that are inapplicable under a win-the-population counterinsurgency strategy. Counterinsurgency instead suggests the principle of exemplarism as a foundation for the complying with the laws of war. Exemplarism is an inherently asymmetric approach. It holds that a party can be bound to law regardless of the actions of other parties. In doing so, the exemplarist state gains in prestige, legitimacy, and power. While humanitarian justifications always remain a powerful reason for counterinsurgents to follow the laws of war, the principle of exemplarism is a response to the war on terror theorists who assert that states have no self-interested reason to follow the laws of war in asymmetrical conflicts.