Rule of Law and COIN environment

warfare is the only fun of the powerful,

which they share with ordinary people

LTC Foltyn 2

The topic of this Congress:

„Current International Crises and the Rule of

Law“

The Rule of Law meets IHL in particular topics such as

obligations of occupying powers etc.,

but the importance of RoL is wider and the role of military

lawyers might be higher, than most of us think.

If we want our soldiers to built RoL, they should

uderstand, why it is so important.

In 30 minutes I will try to show, how to explain it.

Rule of Law:

do we understand its role?

• Rule of Law is a complex issue

• It´s hard to find the right balance among all the

instruments we have

but the basic problem is, that many

soldiers don´t (or don´t want) to understand, that in

COIN Ops some „civil“ activities (incl. RoL) are

military tasks

But in COIN environment such tasks are more important

than killing or detention of insurgents.

In the Maslow´s pyramid of needs the

safety is the second most important (after

physiological needs)

Roots of reasons,

why is Rule of Law so important

• The basic role of any state is to hold monopoly on

violence

• In Hobbes triangle of reasons for use of violence are

Aggresion to to gain

(competition)

fear, safety reputation

(diffidence) (glory)

Hobbes-Pinker´s Violence triangle

Bystander

LAW

predation

Aggresor Victim

retaliation

WAR

8

main idea

(LTC J. Kutger, USAF, 1960)

„The long list of unsuccessful operations

conducted against guerrilla activities is a product

of the

inflexibility of many military leaders as well as

their intransigent attitude concerning the

abandonment of conventional tactics.

This military arteriosclerosis has existed down

through the ages...”

„symmetric“ solution of asymetric problem

„The solution in Vietnam is more bombs, more

shells, more napalm...till the other side cracks and

gives up.”

MG William E. DePuy, 1st Infantry Division, 1966

„I´ll be damned if I permit the United States Army, its

institutions, its doctrine and its traditions to be

destroyed just to win this lousy war“.

(a „noname“ senior officer about Vietnam war)

another way how not to do that H. Guerney, leading UK administrator in Malaya (1949)

„…police and army are breaking the law every day,…“ but it doesn´t matter because Chinese (population) „notoriously inclined to lean towards whichever side frightens them more and at the moment seems to be the government.“

Army must be „stronger than the bandits (INS) and inspiring greater fear.“

but there are still officers who understand,

what is their task

„You cannot win a war like this purely through military

means.

The military is merely there to maintain law and order

and provide a conductive atmosphere for political

development.“

gen. P. Walls, Rhodesian COM

of Combined Operations

Hearts and minds - nothing new

(gen. Templer, who „invented“ the

term “Hearts and minds”)

the combination of instruments

the key to defeating the insurgents lay in

• administrative;

• political;

• economic;

• cultural;

• spiritual;

• and military factors

Compare ISAF good governance:

Participation

Rule of law

Transparency

Responsiveness

Equitable and inclusive

Accountable

Consensus oriented

Effective and efficient

R. Thomson, Defeating Communist Insurgency:

Experiences from Malaya and Vietnam (1966)

• An insurgent movement is a war for the people.

• … government measures must be directed to restoring

government authority and law and order through the country,

so that control over the population can be regained and support

won.

• This cannot be done unless a high priority is given to the

administrative structure of government itself, to its

institutions and to the training of its personnel.

• Without a reasonably efficient government machine, no

programs or projects, in the context of COIN will produce the

desired results.

Hearts and minds

„Hearts means persuading people their best interest are

served by your success;

Minds means convincing them that you can protect

them, and resisting you is pointless. D. Kilcullen,

Twenty-Eight Articles

When we don´t offer safety – RoL (remeber Maslow´s

pyramid), we can hardly win hearts and minds.

Combined Action Company

program (CAC) - L.W.WALT

- squads of Marine volunteers deployed into

the countryside to assist local part-time

militia men known as Popular Forces

Task:

• help to protect the villages,

• get to know the people,

• find the local Communist infrastructure and put it out of

„business“, if these people could be located and won over, the

Communists would be hit where it hurts. Number of "secure"

villages rose between 1965 and 1967 from 87 to 197, number of

Vietnamese in "secure" areas rose from 413000 to 1.1 mil.

Counterinsurgency Warfare: Theory and Practice D.

Galula, (1964)

• „A revolutionary war is 20% military action and

80 % political“ reflect the truth.

• „… the political power is the undisputed boss is a

matter of both policy and practicality. What is at stake

is the country´s political regime, and to defend it is a

political affair.“ (89)

an other right approach…

• The key strategic thrust is to provide meaningful, continuing security for the Vietnamese people in expanding areas of increasingly effective civil authority…

• It is important that command move away from the over-emphasized and often irrelevant „body count“ preoccupation…

gen. Abrams, One War: MACV Command Overview, (1968-72)

From „Search and Destroy“

to „Hearts and Minds“,

Counterinsurgency in Modern Warfare (R. Stubbs):

More troops using the wrong strategy simply means more alienation, more insurgents, and the inevitable call for yet more troops. When the strategy is wrong doubling the effort only squares the error.

Crucial is the retraining of the police and home guard to increase the size and expand the skills of the civil administration.

Britain longest war, Northern Ireland, 1967-2007 (col. R. Iron)

• remove the social and economic causes of the

insurgency.

• work with successive Irish governments to

evolve a political framework acceptable to

both nationalist and unionists populations.

• create and maintain a legal framework that

treats insurgents as criminals; reduce their

legitimacy in the eyes of the population.

5 principles for COIN Ops

R. Thomson, Defeating Communist Insurgency (1966)

• the government must have a clear political aim;

• the government must function within the law;

• the government must have an overall plan;

• the government must give priority to defeating the political subversion, not the guerillas;

• in the guerilla phase of an insurgency, it must secure its base first;

Case study - Afghanistan

(Rule of Law in Taliban´s perspective)

1. Do we remember how the Taliban movement begun?

Mula Umar and his madrassah students (less than 50!) helped

some individuals against criminals in post-Najibullah anarchy;

2. Why they were successful?

They brought some kind of „justice“;

3. What are we bringing to Afghans?

compare to Taliban we brought to Afghans centralized western

styled courts system, but nearly not justice on the basic level…

We do not solve completely new problems, we just repeat old mistakes. We should change our traditional style of thinking

and accept the fact, that in 4GW environment: establishing and maintaining of the Rule of Law is a military task,

and not just a some kind of „high level“ appendix to conventional style of warfare.

Thank you for your attention. LTC Otakar Foltýn Army of the Czech Republic

e-mail: otakarF@seznam.cz

FINAL THOUGHT

questions?

Přednáška voj.aspekty -kolaps

a regenerace, pplk. Foltýn 24

Even soldier is a human

“A soldier has to be much more

than a man with a rifle whose

only objective is to kill. He has to

be part diplomat, part technician,

part politician and 100 percent a

human being.” General Lewis Walt, USMC