Counterinsurgency, The War on Terror, and The Laws of War

Article — Volume 95, Issue 7

95 Va. L. Rev. 1745
Download PDF

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency’s principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency’s ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article is the first to evaluate the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas – from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic and misplaced. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates. 

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 95 / Issue 7  

Interrogation Stories

By Anne M. Coughlin
95 Va. L. Rev. 1599

Constitutional Enforcement by Proxy

By John F. Preis
95 Va. L. Rev. 1633

Counterinsurgency, The War on Terror, and The Laws of War

By Ganesh Sitaraman
95 Va. L. Rev. 1745

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

By Fiona McCarthy
95 Va. L. Rev. 1841