Law features more prominently in warfare today than in any time in memory. Stories about the legality of detaining “unlawful combatants” or “unprivileged belligerents” in Guantanamo Bay are in the headlines weekly. The current set of conflicts may prove to be the most heavily litigated in human history.
The current conflicts have seen an even greater expansion of law’s role in war, though: law as a means of warfare. Both the military and U.S. civilian development agencies have embraced these ostensibly legal activities – referred to generally as “rule of law” – for their contribution to our campaigns in both Iraq and Afghanistan.
Law’s ascendance as a means of warfare is tied to the ascendance of counterinsurgency as a form of warfare. Counterinsurgency, as a contest between opposing groups to be recognized by a particular population as their legitimate government, necessarily places the host nation government’s legitimacy at the center of the conflict. Establishing the rule of law, then, is important to counterinsurgents because of its contribution to a government’s legitimacy.
Nevertheless, the counterinsurgency and stability operations doctrine lack both a meaningful definition of legitimacy and a model for how the rule of law contributes to legitimacy. Counterinsurgents are hardly the first to address the problem, though. Questions about how legitimacy and law operate together have long been studied in both jurisprudence and social psychology. The two fields come at the question quite differently, but both offer important insights into what legitimacy means to counterinsurgents and how it can best be built as part of a counterinsurgency campaign.