The Other Side of COIN: The Civilian-Combatant Distinction, Terrorism and the Law of War
Posted: 29 Aug 2013
Date Written: August 27, 2013
Since 2006, counterinsurgency (“COIN”) doctrine has revolutionized the way the U.S. military thinks about war. While COIN literature has proliferated in this period, comparatively little legal scholarship has examined the relationship of COIN to international law. The legal scholarship that has engaged with COIN is overwhelmingly positive, assuming that COIN aligns unproblematically with the dictates of the law of war. In espousing human rights and civilian protection as its core principles, COIN provided a common discourse that appeared to bridge the conceptual divide that existed between legal humanitarians and neo-pragmatists. However, the rhetorical success of COIN has come with significant, and as yet unrecognized, costs. This article argues that COIN’s influence on the law has had counterintuitive consequences that should give both COIN proponents and humanitarians pause. In particular, COIN inverts the core tenet of the law of war – the civilian-combatant distinction – in order to achieve its strategic objective of greater civilian protection. While legal scholars have celebrated COIN for its purported alignment with the law of war’s humanitarian goals, I show how COIN lends itself equally to the sort of ad bellum/in bello conflation that many scholars rebuke as violative of these same goals. COIN is aligned with law only insofar as it seeks to exclude insurgents/terrorists from the law of war’s discursive terrain. In refusing to engage insurgents’ ad bellum objectives, COIN perpetuates international law’s liberal statist bias. Rather than progressively developing the law of war, as legal scholars argue, COIN is profoundly conservative. From a normative perspective, COIN cannot claim the “moral high ground” it purports to. I suggest that a more responsible approach would admit insurgents as legitimate parties to war, in order that their political objectives could be substantively engaged with.
Keywords: International law, Counterinsurgency, Terrorism, War and Peace, National Security, Military
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