By Ellen Klein
March 25, 2013
In the aftermath of the September 11th terror attacks and the NATO invasion that overthrew the Taliban-controlled government in Afghanistan, the international community gathered at the initial Tokyo Conference where, led by the United States, they pledged to reshape Afghanistan into a stable democracy. In May, 2003, following the invasion of Iraq, then-President George W. Bush announced the end of combat operations and the beginning of a similar reconstruction mission. The goal was to turn rogue states into democratic strategic allies by building up both public and private institutions, such as governance, infrastructure, economic entities, civil society, and rule of law. However, the United States and its allies soon found themselves in protracted counterinsurgency conflicts, fighting ruthless enemies while, at the same time, working to build functioning states and protect local civilian population. These improvised peace building/ war fighting hybrid missions created unforeseen challenges for the United States and Coalition members. Many solutions, strategies, and grand proposals were put forth, with varying success. Yet, after more than ten years, an estimated billion dollars spent, thousands of Americans killed, and tens of thousands of Americans wounded, the U.S. Government is still struggling to strike the balance in the “clear, hold, build” formula of counterinsurgency, or COIN, operations.
The U.S. Government’s rule of law mission has morphed and mutated throughout the conflicts in Iraq and Afghanistan. Legions of lawyers, advisors, military commanders, civilian officials, contractors, and lawmakers all sought to stamp their brand on what is certainly the most fashionable sector of counterinsurgency and stability operations. The concept of “rule of law” captures the attention of nation-building westerners in a way that makes the likes of building functioning government institutions, economic planning, and big construction seem dull or overly technical by comparison. Like a Rorschach test for society, rule of law can mean all things to all people, and this subjective approach is too often reflected in disjointed efforts on the ground. Perhaps the greatest divide within the U.S. Government’s rule of law mission is between the military community and the civilian agencies tapped with rule of law tasks, particularly, the Department of State (DOS) and the U.S. Agency for International Development (USAID). In Afghanistan, the U.S. military attempted to bridge this divide by establishing a rule of law “field force”—a command with mobile units specifically dedicated to rule of law projects in various areas of operations.
The purpose of this paper is to identify some of the most frequent obstacles rule of law practitioners experience in military environments, and to suggest that the rule of law field force concept is the best formula for effectively bridging military rule of law tasks with civilian development missions in post conflict arenas and stability operations.
Rule of Law and the Security Catch-22
In December of 2006 the Army issued Field Manual (FM) 3-24, Counterinsurgency, commonly abbreviated as COIN. This field manual was the culmination of lessons learned by the military and civilian agencies in the Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) conflicts in Iraq and Afghanistan, respectively. Since the publication of FM 3-24, and even in the months leading up to it, COIN became the strategy, philosophy, and catechism of the U.S. military in Iraq and Afghanistan. There is no shortage of analyses of the wisdom and folly of the U.S. COIN strategy, and there will be grist for the mill for decades to come. Indeed, with the end of the U.S. military mission in Iraq on December 18, 2011, and the current military drawdown in Afghanistan, many wait to see whether the COIN doctrine will prove itself to be sacred or profane.
A major focus of the COIN debate revolves around the role of the rule of law mission within the COIN strategy. Up to the present, finding the balance between the expediency of the security mission with the long-term investment in rule of law efforts has eluded the U.S. leadership. The essence of COIN is delegitimizing insurgent control while simultaneously building support for the host nation government. Rule of law, under the COIN doctrine, is “a key goal and end state” that stems from the “realization that combat operations without civilian stabilization efforts are insufficient to ‘countering’ or defeating an insurgency.”  Rule of law practitioners argue that in order for security gains to be fully realized, rule of law activities must have equal priority alongside kinetic missions. However, conducting rule of law operations in an environment with an active insurgency presents many challenges, and can be prohibitive to civilian rule of law practitioners. Battle space owners are primarily concerned, justifiably so, with carrying out combat and security operations. The result is that those units, organizations, and individuals charged with implementing rule of law operations, more often than not, are relegated to a secondary role in favor of immediate kinetic security gains.