Judicial Strategy in Insurgencies
Student thesis: Doctoral Thesis
This thesis is concerned primarily with the use of law and courts as strategic assets in insurgency. Its subject is ‘lawfare’. Recent discourse on insurgency and counterinsurgency has focussed on ‘population-centred’ activities-the idea of the ‘people’ as a ‘prize’. An indispensible ingredient of any effective government is the ability to adjudicate – usually by a judiciary. At the heart of many insurgencies (not all), is the realisation that the ability to decide disputes and enforce those decisions bolsters legitimacy. The perceived ability to do this is important to the narrative of the insurgency. Counterinsurgents (incumbents) have often concentrated on the security aspect of courts and ‘justice’. This can work where there is no competitive system in operation in the operational area. This was so during supposedly successful operations by the British in the 1950s. Even in such cases there is the potential for what is termed here ‘rupture’ and ‘disruptive litigation’ where incumbent courts may be used to blunt both operational effectiveness and even the legitimacy of incumbent rule. When insurgents set up competing justice systems within their own communities, provided that these are seen as ‘fair’, they may be highly effective. Indeed some insurgencies, sometimes with causes rooted in the vital matter of land, have levered their ability to adjudicate and enforce into power. The role of courts goes well beyond land however, as the cases of the Irish War of Independence (in Western Europe), and the Afghan Taliban (in so-called ‘ungoverned space’) have demonstrated. Often knowledgable colonial incumbents ruled through delegated authority in so-called ‘ungoverned’ (or ’differently governed’) space. They were acutely aware of the importance of ‘lawfare’. Whilst the applicability of lessons drawn from those experiences should not be overstated, they should not be ignored. A brief study of the west’s efforts areas of Afghanistan demonstrates some of these factors. Attempts to impose an alien system there ask the quesion 'who really is the insurgent'?
|Award date||15 Jun 2015|