The Counterinsurgent's Constitution: Law in the Age of Small Wars

The Counterinsurgent's Constitution: Law in the Age of Small Wars

The Counterinsurgent's Constitution: Law in the Age of Small Wars

The Counterinsurgent's Constitution: Law in the Age of Small Wars


Since the "surge" in Iraq in 2006, counterinsurgency effectively became America's dominant approach for fighting wars. Yet many of the major controversies and debates surrounding counterinsurgency have turned not on military questions but on legal ones: Who can the military attack with drones? Is the occupation of Iraq legitimate? What tradeoffs should the military make between self-protection and civilian casualties? What is the right framework for negotiating with the Taliban? How can we build the rule of law in Afghanistan?

The Counterinsurgent's Constitutiontackles this wide range of legal issues from the vantage point of counterinsurgency strategy. Ganesh Sitaraman explains why law matters in counterinsurgency: how it operates on the ground and how law and counterinsurgency strategy can be better integrated. Counterinsurgency, Sitaraman notes, focuses on winning over the population, providing essential services, building political and legal institutions, and fostering economic development. So, unlike in conventional war, where law places humanitarian restraints on combat, law and counterinsurgency are well aligned and reinforce one another. Indeed, following the law and building the rule of law is not just the right thing to do, it is strategically beneficial. Moreover, reconciliation with enemies can both help to end the conflict and preserve the possibility of justice for war crimes. Following the rule of law is an important element of success.

The first book on law and counterinsurgency strategy,The Counterinsurgent's Constitutionseamlessly integrates law and military strategy to illuminate some of the most pressing issues in warfare and the transition from war to peace. Its lessons also apply to conflicts in Libya and other hot-spots in the Middle East.


This book is about law and counterinsurgency strategy, two fields that are rarely combined. Although counterinsurgency strategists and theorists mention the importance of law, few spend much time thinking about legal issues. Perhaps fewer lawyers and legal scholars spend their time thinking about counterinsurgency strategy. One of my goals is that this book will serve as a bridge between these two fields and, in the process, contribute something to each of them. Lawyers and legal scholars can learn a great deal from counterinsurgency, just as soldiers, strategists, and policymakers can learn a great deal from law. in addition to better understanding each other, both sides may even begin to think differently about their own fields. in spanning these two areas, I hope readers will forgive the somewhat introductory explanations of basic concepts that they may take for granted. My aim is to make this book accessible to lawyers, law professors, and others involved in legal issues; members of the military; foreign policy professionals; academics in political science, history, and economics; and the wider public. But in doing so, I have invariably sacrificed some technocratic jargon, depth, and detail.

In some ways, however, this attempt to bridge law and strategy is particularly fitting in a book on counterinsurgency. One of counterinsurgency’s most important lessons is that we must integrate seemingly disparate aspects of life: military, political, economic, social, cultural, and legal. Each of these areas is dynamically interconnected with the others, and understanding and addressing their relationships (and the totality) is crucial to success. Indeed, in many ways, “law and counterinsurgency strategy” is even too narrow a description of the fields I seek to unite in this book. Transitional justice raises questions of politics and moral philosophy; the rule of law implicates governance, political theory, and sociology; the political nature of warfare itself requires attention to social movements and mobilization, cultural traditions, and economic factors; and each of these factors necessarily operates with thousands of years of history in the background.

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