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Thread: COIN v CT

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    Council Member William F. Owen's Avatar
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    Default COIN v CT

    I am picking this up from here

    Something here got me to thinking,

    The distinction between COIN and CT, however, is poorly understood. For one, there is no hard and fast dichotomy between the two – a fact that Kaplan and other longtime defense correspondents largely understand but which policy-makers must understand as well. If what Kaplan writes is true, and policy-makers are stuck thinking of their policy options as either/or propositions, we are in more trouble in Afghanistan than I thought.
    In the UK there is pretty much clear blue water between Counter-Terrorism and Counter-Insurgency, when it comes down to the detailed discussion, and even general understanding. It's never occurred to me that there should be a confusion between the two.

    Do the lines between the two blur? Sure, but when anything blurs, you re-focus. Very little in Warfare is a hard and fast separation, so I am extremely curious as to how this even becomes a problem, because once considered within a context, most of the problem goes away EG: Suicide bomber on NY train = Terrorist. Suicide bomber in Baghdad Market = Insurgent. Given context, I can't see the problem, even at the higher strategic level. 9/11 = Terrorism (no military means or intent). Something in A'Stan = Insurgency - (use of military means with military intent).

    What am I missing?
    Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"

    - The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
    - If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
    Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition

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    Council Member davidbfpo's Avatar
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    Default COIN v CT

    Wilf,

    Some of this was discussed in the thread 'COIN comes home': http://council.smallwarsjournal.com/...ead.php?t=5424

    In the UK CT community junior staff can now often be heard talking about "hearts & minds" and even Frank Kitson's writings. In an odd way as some read on CT they encounter COIN and absorb that knowledge without realising there is "clear blue water" between them. Whether senior staff do this is unknown.

    I suspect that in the USA there is a far greater relationship between law enforcement and the military - than the UK - simply from reservists being aclled up to serve (National Guard etc). Another thread about Salinas illustrates that: http://council.smallwarsjournal.com/...hlight=salinas


    davidbfpo

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    Council Member William F. Owen's Avatar
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    Quote Originally Posted by davidbfpo View Post
    Wilf,

    Some of this was discussed in the thread 'COIN comes home': http://council.smallwarsjournal.com/...ead.php?t=5424

    In the UK CT community junior staff can now often be heard talking about "hearts & minds" and even Frank Kitson's writings. In an odd way as some read on CT they encounter COIN and absorb that knowledge without realising there is "clear blue water" between them. Whether senior staff do this is unknown.
    Well someone needs to grip the junior staff and quickly. Wrong language and you'll have the wrong solution to the non-existent problem!
    From the community I talk to, (and davidbfpo knows one of them!) I submit:
    Terrorism is a police concern, the subject/object being the criminal use of violence, for political aims.
    Insurgency is a military concerns, the subject/object being the military use of violence, for political aims.

    Now I fully accept there are regions where the distinction is difficult or maybe even not useful, but we can all think of clear and consistent examples of those which are Insurgency tactics and those which are terrorism. However, I also think someone really needs to examine WHY the distinction matters. I have no doubt that there is one, merely in terms of tactics and legal responsibility, but once that is addressed, I am not sure we can get much farther.

    I just see this a a recurring cycle, of
    Wheels v tracks - you need both.
    War v COIN - you need to be good at both.
    COIN v CT - why important?

    at least 9mm v .45 was measureable, once you got past all the teary-eyed emotional stuff!
    Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"

    - The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
    - If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
    Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition

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    Council Member wm's Avatar
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    Quote Originally Posted by William F. Owen View Post
    Terrorism is a police concern, the subject/object being the criminal use of violence, for political aims.
    Insurgency is a military concerns, the subject/object being the military use of violence, for political aims.
    Given this division of the subject matter (with which I agree BTW), the distinction becomes important when one deploys one's military forces to another country as part of an FID effort for example. It may very well be the case that this force gets called on to do CT work because the host nation does not have adequate police to do the job and one's own military is being (mis)used as police as a result.

    I suspect one wants to be able to see the difference between CT and COIN as a way of trying to prevent mission creep or misuse of deployed forces. Within the US, it is somewhat easier (at present anyway) to keep the two distinct both because of laws about what our military is allowed to do or is prohibited from doing on US soil and because we don't have an active insurgency ongoing within our boundaries. Once one gets to Afghanistan, I think the distinction is much harder to discern.
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    I would offer that it is not really surprising that there has been a blurring over recent years. Use of terms like illegal enemy combatant (along with the 'advanced interrogation' of persons such as KSM) etc have hardly been helpful in maintaining distinctions. KSM was pretty clearly a terrorist but has not been treated as such (as opposed to individuals like his nephew Ramzi Yousef).

    Individuals who have been involved in what (I would argue) are insurgent/guerrilla activity have been classed as terrorists, and in some cases vice versa. I think, at least from the UK perspective, that the crossover/interaction between insurgent elements in Afgh/Pak and those involved in terrorist activity in the UK may also contribute to this trend.

    Are individuals from the UK Pakistani community who travel to Afgh/Pak to fight against ISAF terrorists or insurgents? On balance I'd say the latter, but if the UK police nab them at the airport, they'll be charged under CT legislation. And those same individuals may well go with the intent of fighting there but return to commit a terrorist act in the UK. (The recent stories about UK forces hearing Brummie accents on Taleban radio channels is a case in point).

    The use of military means and tactics (such as assassination using armed drones) to eliminate individuals suspected of using what Wilf categorizes as 'criminal' violence for political means must also have had an impact - (i.e. the use of military counter-insurgency style tactics to counter/suppress a terrorist threat) - so it is not surprising that this is feeding back into policy thinking.

    What about the Israeli perspective? Palestinian use of suicide attacks against civilian targets (which I'd class as terrorist) countered with assassinations/ airstrikes. Not really a policing led approach (though I'd acknowledge the Israelis have a lot of Palestinian terrorists/insurgents locked up as well).

    The distinction is being lost, at least in part, because the counter-measures being used to combat the two have converged somewhat, because political expediency has called for it and because those individuals involved are sometimes interchangeable.

    In terms of why the distinction matters, isn't it to do with conferring a degree of legitimacy on those you are combating? PIRA always sought to claim it was a legitimate military organization, with POWs, uniforms etc - the British always sought to class them as terrorists and therefore criminal. Hence such things like the hunger strikes and police primacy.

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    In a place like Afghanistan, I don't think it's possible to completely separate CT and COIN - maybe it is in the western world, but the line is practically indistinguishable there. CT is really an intelligence-driven enterprise - the difficulty isn't killing/capturing/disrupting terrorists and their networks, it's discovering and unraveling those networks and for that good intelligence, usually HUMINT, is required. Favoring CT in Afghanistan at the expense of other efforts like COIN would hurt that intelligence effort, IMO and thereby hurt the CT effort. Few are going to risk their heads (literally) to provide information to US CT forces unless there is some significant benefit for them.

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    Council Member Bob's World's Avatar
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    Will engage on this later, because this is a critical topic, and is far more complicated and confused than it needs to be. In the end, both missions are very difficult to implement, but when cast in the proper light are very easy (I think) to understand.

    Both of these operational terms have been horribly abused, misused, and twisted, colored by the Iraq experience, and captured for political purpose within the US over the past several years. In short, I would argue that NEITHER is the proper operation to make as the focal point for moving forward in Aghanistan, but explaining why will take more time than I have currently.
    Robert C. Jones
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    "The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)

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    Council Member William F. Owen's Avatar
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    Quote Originally Posted by gh_uk View Post
    I would offer that it is not really surprising that there has been a blurring over recent years. Use of terms like illegal enemy combatant
    Concur.

    Are individuals from the UK Pakistani community who travel to Afgh/Pak to fight against ISAF terrorists or insurgents? On balance I'd say the latter, but if the UK police nab them at the airport, they'll be charged under CT legislation.
    While quite correct in what you say, it does not support the concept of why the distinction is useful. Yes, they get nabbed under CT legislation, but if they take to the field in A'Stan, then they are insurgents.

    What about the Israeli perspective? Palestinian use of suicide attacks against civilian targets (which I'd class as terrorist) countered with assassinations/ airstrikes. Not really a policing led approach (though I'd acknowledge the Israelis have a lot of Palestinian terrorists/insurgents locked up as well).
    The Israelis do not differentiate between the two, because they do not see it as useful to do so. This is sort of my point. Yes you can differentiate between the two. Why do you want to? There might well be cases where it is useful, but that is driven largely by context.

    PIRA always sought to claim it was a legitimate military organization, with POWs, uniforms etc - the British always sought to class them as terrorists and therefore criminal. Hence such things like the hunger strikes and police primacy.
    PIRA wanted to be an Insurgency, but could never be effective as one. They had to limit themselves to "terrorism." UK was very concerned never to let the PIRA become an insurgency.
    Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"

    - The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
    - If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
    Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition

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    While I am by no means a legal/theory expert on this (there are those on here who are, and I welcome correction on any of the following), does the need to draw a distinction not come down to the relatively basic premise that, for the most part, we (as in Western democratic states) do not (or at least until fairly recently did not) on the whole kill people unless a) we are in a state of war with them (i.e. the armed forces of another state/ organised insurgents) or b) they pose an immediate danger to life (e.g. armed police officer confronting an armed suspect, soldier in Ulster with yellow card ROEs) or c) they have gone through a judicial procedure and are executed under due process - in those states with the death penalty.

    As above, terrorists engage in illegal, criminal violence for political means and must be treated/punished as such - arrested, convicted and sentenced wherever possible.

    Simply using military force against such individuals suggests that you are engaged in some form of 'war' with them, which in turn implies some form of legitimacy on their part to be engaged in said warlike state. Failing to treat them as criminals implies some form of legal or moral equivalency between the state and those it is combating.

    Isn't this part of the reason behind the Bush administration's legal and semantic gymnastics - it tried to create a means of detaining suspects as effective POW's without any of the legal niceties while labeling them as terrorists, but denying them the due process this should have entailed.

    I realise that in the context of the last 8 years this might all sound a tad naive but does the above make some sense?

    While quite correct in what you say, it does not support the concept of why the distinction is useful. Yes, they get nabbed under CT legislation, but if they take to the field in A'Stan, then they are insurgents.
    My point on this is that I wonder if this is part of the reason for Davidbfpo's point - that those in policy realms beginning to use COIN-speak and concepts in relation to CT - that the apparently seamless interchange of status between some UK citizens (insurgents/terrorists depending on, as you put it, their immediate geographic context) is leading to a convergence of the COIN/CT approaches/thinking in Whitehall?

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    Here is my 2 cents(it is about 8 cents now as I have said it many times before) and why I believe it is critical to understand that under the US system there are only 2 types of wars. Declared and Undeclared. In a declared war an insurgent would be a POW and we would follow the Law of Land Warfare. In an Undeclared war we would follow the rule of law and the suspect or suspects would be prosecuted as criminals. It is a system and when you follow the Systems rules you will generally get the Effects you want....If you don't...woe be unto you because there is no telling what you will end up with.

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    Default Two divergent legal views ...

    so, you (used generically for "a person") can be both right and wrong - depending on whether the brief you carry is carried in one country or another.

    On one hand, the Eminent Jurists Report has a viewpoint that gh_uk probably favors.

    On the other hand, the US courts - and both the Bush II and Obama administrations - have a different viewpoint, which is gradually evolving based on principles of the Laws of War (as interpreted and applied in the US) and on the principles and interpretations of the US Constitution. That is still a work in process - with ramifications not only on the Laws of War, but also on future ROEs. So, this thread which looks at developments in both the US and the UK.

    For a more in depth look at Astan, look at this thread -which presents the US constitutional view on some related issues.

    The Bush II administration had some very odd ideas (promulgated mostly in the period 2001-2003 by John Yoo et al) about executive power, rendition, interrogations and a number of domestic situations. While those odd ideas have been largely scrapped, the more mainstream Bush II positions (as to detention, Iraq and Astan) have been continued with different rhetoric.

    I have a lot of problems with Wilf's examples and definitions, which I expect is due to having completely different perceptions of the same facts. However, this is enough for now.

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    Council Member Bob's World's Avatar
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    Ok, no one seems to grasp the subtleties of this when I speak in terms of conflict and war, perhaps what is needed is the language of love...

    We go round and round on these military terms because so many who talk about them know so little about them. Once misused, it gets picked up in the media or policy and the problem exacerbates itself. So, while most humans don't engage in warfare, all at least have hopes of engaging in sex, so maybe that makes a better medium for gaining understanding:

    Terrorism is rape. The use of sex to incite fear and/or control over some unwilling other.

    Counterterrorism (CT) then, are those efforts to deal with the rapist directly. To either arrest him, or if necessary kill him in the process. Often the rapist will hide out at a friends house or in some public place. Every effort must be made to deal with the rapist without making things difficult for those he chose to hide among. If you have probable cause that he is in a particular private residence, you will remain on the moral high ground if you attain a warrant and actually knock before barging in to make the arrest. Declaring a "War on Rapists" does not somehow obviate this requirement!

    Insurgency is when your wife is upset with you for reasons only she fully understands or appreciates, and refuses to have sex and may in fact want a divorce, or to replace you with another man, or even to move in with the neighbor.

    COIN then, are the efforts of the husband to identify and repair his offensive behavior to create an environment inducive to sexual relations and to preserve his marriage. This is a continuous effort and he must never forget that, and by thinking in terms that he is conducting COIN everyday will not only make his life much easier, but it will also ensure that he has a healthy sexual relationship.

    Unconventional Warfare (UW) is when you engages the wife of another man and attempts to convince her to stop having sex with her husband at a minimum, and usually to have sex with you instead. You may in fact convince her to leave her husband with your lies and charm, but you will likely abandon her once your own needs are met. Often this results in her having to return to her husband and what are often rather harsh consequences. She is not likely to listen too seriously to this Romeo if things are good at home in the first place, so for your UW to work you either must be offering something much better than what she has, or catch her when she is dissatisfied with her husband for reasons only she can fully understand or appreciate. UW is very difficult and dangerous business, and should only be attempted by those with special abilities honed by years of training and experience.

    Foreign Internal Defense (FID) are the things you do to help a friend stay in good graces with his wife. Perhaps you loan him your cabin at the beach to take her on a vacation; your car to take her out to dinner; or you tell him when he is being an asshole and can't see it for himself; or even teach him your "signature move" that works every time. If you go too far and actually begin to demonstrate the move, or take over the wining, dining and lovemaking altogether, you are likely to ruin the friendship and ultimately the marriage you are trying to save. If you begin to think you are there to conduct COIN instead of FID this is highly likely to happen.

    Hopefully this helps shed a little light on the nuances between these various operations.

    But remember, if you come over to my house wanting to conduct COIN or CT either one, I am likely to throw you out on your ass...
    Last edited by Bob's World; 03-27-2009 at 08:25 PM.
    Robert C. Jones
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    "The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)

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    Council Member slapout9's Avatar
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    B.W. I would add that all of the above could be going on at the same time, plus plain old criminal activity in the Target Area of an Undeclared War. All the above are just combinations of Stabilizing or Destabilizing operations or as Wilf says Combat or Security OPs. I just don't see any benefit in to breaking them down into so many categories? You are still going to do 2 primary things Stabilize the innocent and Destabilize the Illegals or (in Love language hunt them down and cut their Wangles off and they will stop that foolishness or train/help them(innocent population) to do it.)
    Last edited by slapout9; 03-27-2009 at 10:52 PM. Reason: fix stuff

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    Council Member Umar Al-Mokhtār's Avatar
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    Default But Bob...

    what if I come over specifically on special reconnaissance intent on performing certain direct actions after the appropriate winning of hearts and minds...
    "What is best in life?" "To crush your enemies, see them driven before you, and to hear the lamentation of the women."

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    Council Member William F. Owen's Avatar
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    Quote Originally Posted by jmm99 View Post
    I have a lot of problems with Wilf's examples and definitions, which I expect is due to having completely different perceptions of the same facts. However, this is enough for now.
    So let's take that for a spin. I am by no means advocating that I have some unique insight.

    a.) Is CT really different from COIN in a way that usefully aids practice?
    b.) Is that difference actually obvious and enduring?

    These are merely the questions I ask, and for which I have offered answers.
    Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"

    - The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
    - If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
    Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition

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    Default Wilf, I will get back on this later ...

    without any spin.

    Have to leave on a project (got lost on the time while composing a reply) - either later today or Sun.

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    Default Framing the problem

    So let's take that for a spin. I am by no means advocating that I have some unique insight.

    a.) Is CT really different from COIN in a way that usefully aids practice?
    b.) Is that difference actually obvious and enduring?
    CT and COIN are solutions, not the problem (actually we transformed the solutions into the problem, because they are frequently inappropriate). What we need to define is the problem, or problems? The military isn't the most flexible organization in the world, so when a threat emerges we respond with a pre-programmed solution whether it is appropriate or not. So the answer to a) is no b) is no.

    Bob's World surfaced the idea in another forum, the essence of what we're doing is countering irregular threats to our national interests. They may come in the form of terrorists, financers, insurgents, propagandists, etc. The context will determine the appropriate response. You have a handful of Islamist Extremists training to blow up Greyhound buses in the mountains of W. Virgina, the response will probably be a combination of local and federal law enforcement agencies. If you have a handful of Islamist extremists training in Pakistan to target subways in NYC we may have several response options ranging from assisting the local security forces put these guys to rest (coalition law enforcement or warfare), you pay some tribal locals to kill them (UW), you can fly a UAV over them and drop a hellfire missile on them, etc. Can the response change legal character of the target from insurgent to terrorist?

    If a group of financers who live in Country Y are funding Mosques and Imams in country X with the expressed intent to radicalize the attendees to participate in Jihad is that support to an insurgency or support to terrorism? Or do we have to wait and see where the attendees go to participate in Jihad to determine that? If they go to W. Virgina they're terrorists, if they go to Afghanistan they're insurgents?

    If the Taliban conducts IED attacks on coalition forces and civilian targets within Afghanistan with the intent to achieve control then they are insurgents, but if they conduct an attack on a military base in Europe to get that country to pull out of Afghanistan are they insurgents or terrorists? If they conduct an attack on a subway in that same European country in an attempt to get them to pull out of Afghanistan are they terrorists or insurgents? Is it the intent of the act, or the purpose of the act that defines the character of the problem?

    Let's visit the deny safehaven argument. Afghanistan was a safehave for terrorists prior to 9/11, so was the invasion of Afghanistan a CT mission or a conventional military operation where we conducted combined/coalition operations with the N. Alliance to deny safehaven to AQ? When did it transition from CT to conventional to COIN to address the same problem?

    Probably terrible examples, I'm writting fast, but I'm simply pointing out that it isn't always useful to try to categorize the problem by our doctrinal responses.

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    Council Member slapout9's Avatar
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    Quote Originally Posted by Bill Moore View Post
    Is it the intent of the act, or the purpose of the act that defines the character of the problem?

    Of course!! that is why I keep saying that understanding the motive is key to your success. And I say this again....understand the motive or purpose...do not judge it as rational or irrational because it may be very irrational from your point of view but completely rational from their point of view. All serial killers have motives none are rational but that does not change the fact that they are an effective cause for action on their part. As it relates to SBW, T.E.Lawence figured it out..."A conviction is best shot!"

    Further COIN,CT,IW,FID, or whatever are not types of warfare they are strategies designed to defeat certain enemy/criminal strategies that we may face.

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    Default The problem is here ....

    from Wilf
    EG: Suicide bomber on NY train = Terrorist. Suicide bomber in Baghdad Market = Insurgent. Given context, I can't see the problem, even at the higher strategic level. 9/11 = Terrorism (no military means or intent). Something in A'Stan = Insurgency - (use of military means with military intent).
    9/11 - Act of Aggessive War.

    9/11 was an act of aggressive war against the US waged by a VNSA (Violent Non-State Actor). Not having cruise missiles, AQ improvised and, as a weapons system, used the functional equivalent - hijacked airliners. AQ's selected targets (WTC, Pentagon and the DC government complex) were militarily logical (disruption of US C&C and of the US economic system). In many ways, the AQ attacks resembled Pearl Harbor (a VSA, Violent State Actor, attack), and was so regarded by many here (including JMM).

    In response to that AQ violence, Congress passed the AUMF, which was accepted by the President. By that political decison, the situation became one of an armed conflict between the US and AQ (with Taliban and associated groups included) - governed incidentally by Common Articles 2 and 3 of the GCs as ratified by the US.

    Prior to the attacks, AQ had made clear its purpose: that absent conversion or submission of the US to Islam, AQ would employ violence as the means to cause the US (government and people) to submit to its immediate demands in the Middle East. The strategy followed by AQ was made clear by the series of attacks beginning with the 1993 WTC attack and continuing through the Cole attack. The response of the US government to the pre-9/11 attacks was a collage of law enforcement efforts and minimal military actions.

    The 2001 AUMF was a formal response to AQ's message of intent - we will not submit to your will regardless of the violent means that you employ.

    Terror is an Effect

    Terror, like its cousin Shock & Awe (and other "EBOs"), is subjective, based on the psychological reaction of the targeted population (an effect) to the violent event (the means). As such, it is essentially useless in classifying the means or the actor, either for legal or military purposes. One must concede that consideration of terror is important to the targeted population because, if a substantial segment of that population is terrorized, it will lose its resolve to resist and will be inclined to submit to the will of the attacker. Thus, the best tool to fight "terrorism" (or any other "EBO") is a targeted population that refuses to be terrorized, shocked or awed by the violent means used by the attacker.

    Status of the Attacker

    In the case of 9/11, AQ can be validly classed as an aggressor (of the VNSA type). One can if one wishes call them "terrorists", but that is not the status which justified the political decision made; and shaped the legal and military actions taken pursuant to that political decision. That status was one of an aggressor, based on the facts of the event (violence as a means with intent to overcome the resolve of the targeted population).

    I have no objection to someone calling AQ "terrorists" (and worse names which I and others have used); except that to some (e.g. the Eminent Jurists), "terrorist" and "terrorism" have a meaning which seriously limits the legal and military options which can be used.

    Insurgency and Insurrection

    Following the OED (Oxford English Dictionary), insurgency and insurrection are cognates developed from the same stems: in- & -surge. In this context, in- has the concept of "within bounds"; and -surge that of a "rising". So, both amount to a "rising within" a nation - in short, the natives become very restless, indeed.

    An insurgent taking part in an insurgency or insurrection (the US constitutional term used cognatively with "rebellion", as in the 14th Amendment), can be a "terrorist" - assuming that his violent act (the means) causes terror (an effect). An insurgent can also be an aggressor if he attacks first (Mr. Lincoln's position re: the South when Fort Sumter was attacked) - a status based on the facts surrounding the violent act (the means). However, neither name tag ("terrorist" or "aggressor") helps in defining that person's status as an insurgent.

    The bottom line is that an insurgency is fundamentally a domestic problem of a nation whose natives become restless enough to resort to violent acts. Of course, those native insurgents may have external support (by either a State or Non-State Actor). Whether the nation treats those insurgents as criminals or participants in an armed conflict is again a political decision. If it elects the latter course, it enlarges its military options at the cost of some recognition of the insurgency as a "Power" to the armed conflict (Common Article 2 of the GCs) and bringing into play Common Article 3.

    Transnational Violent Non-State Actors

    An insurgency can be a Violent Non-State Actor (and a "Power" to an armed conflict as in the paragraph above), of course; but an insurgency is primarily focused within the bounds of the nation where it is indigenous. With the advent of groups that act transnationally (such as AQ, which in effect has no nationality as a group), the neat little boxes of international law and military doctrine became a bit discomforted.

    The more conservative view (although I would call it a "bound to the past which is gone" view) is to basically continue with the Laws of War (which indeed vary from nation to nation) as being applicable to armed conflicts between nation states, with some rules (not universally accepted) being applicable to some domestic armed conflicts (insurgencies, wars of national liberation, etc.). Violent acts, even though by organized groups which in every other sense could be considered "Powers", are relegated to the arena of criminal law. That is basically the view of the Eminent Jurist Panel and its report. There are pros and cons for and against that viewpoint.

    It is up to each nation to decide whether it will adopt the position of the Eminent Jurists (which has substantial, but not universal, international support); or whether it will reserve the right to make the political decision as to whether or not it is engaged in an armed conflict with a VNSA.

    A Transnational Violent Non-State Actor, as I have described it, cannot be an insurgent as such to any nation - it has no nationality. It can, of course, support a insurgency in a given nation. But, its own violent acts are acts of aggression against the nation it attacks. If those acts result in terror, then it can be called a "terrorist" if one is so inclined; but, if one does so, one must be aware that to the Eminent Jurists (and all who think like them), "terrorism" is a criminal act to which the Laws of War do not apply - as a matter of law.

    Making War is a Political Decision

    The theory of the Eminent Jurists (and any of its variants) is that determination of whether or not there is a war (an armed conflict) is to be made as a matter of law. Presumably, this would be made by the Eminent Jurists Panel (as they in effect have done in their report as to the actions of the US since 9/11). Perhaps, they would suggest an all-powerful international body to decide whether a war (an armed conflict) exists - and apply a Uniform Global Law of War and Rules of Engagement - as matters of law.

    On the other hand, there are still some of us who have a respect for the national state and its sovereignty; with the capacity to adapt to Transnational Violent Non-State Actors and their violent acts. In that view, the decision to make war (authorize the use of military force in an armed conflict) is a political decision, to be made according to the constitutional framework of that nation.

    Today, in the US, the Laws of War and military doctrine are both works in progress. So far, the decisions seem to incline to the view based on national sovereignty and that war (an armed conflict) is an extension of the national political process. Each nation will have to pick its own ground on how it treats that process.

    My bottom line is that law enforcement is law enforcement; and that war is war. In extraordinary circumstances, we (US) reserve the right to make the political decision to shift from the first to the second condition.

  20. #20
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    JMM,

    Interesting and thought provoking stuff.

    How do the evolving US Laws of War etc impact on the status of the protagonists? I realise there has been a long running debate on this but interested in your views. If the sovereign state makes a political decision as to how to deal with a threat, is it then also up that state to make its own (unilateral) decisions about the status and rules applied to those identified/captured/detained in the process of fighting that conflict?

    And how do we account for the selective use of criminal/legal procedures for those captured on home soil against that applied to those killed/captured on foreign fields? For example the alleged Fort Dix plot - use of armed individuals (of foreign origin) to attack a military target in the US in apparent support of the wider AQ agenda. Terrorists, insurgents, criminals? The legal response suggests that they are being classed as terrorists/criminals. But as you noted:

    My bottom line is that law enforcement is law enforcement; and that war is war. In extraordinary circumstances, we (US) reserve the right to make the political decision to shift from the first to the second condition.
    So in effect the US (or presumably any other state) can make the political decision to take that shift in either direction, depending on the context of specific cases? Even within the boundaries of the 'state of armed conflict' between the US and AQ?

    I'm not trolling or seeking an argument - I am genuinely interested in your thoughts on this. As stated previously, legal aspects are not my forte, so I this is really useful for me.

    An insurgent taking part in an insurgency or insurrection (the US constitutional term used cognatively with "rebellion", as in the 14th Amendment), can be a "terrorist" - assuming that his violent act (the means) causes terror (an effect).
    I'd concur with with this - insurgents are quite capable of using terrorism as a tactic to further their goals. A suicide bomber in a Baghdad market targeting civilians would pretty much fall within this for me.
    Last edited by gh_uk; 03-29-2009 at 11:31 AM. Reason: spelling

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