The Law at War: Counterinsurgency Operations and the Use of Indigenous Legal Institutions

Success in counterinsurgency campaigns requires the U.S. military to train, equip, and ultimately turn over responsibility for public safety to indigenous legal institutions. Doing so presents many challenges, as pragmatic concerns for operational security and use of intelligence as legal evidence must be reconciled with cultural differences and the weakness of indigenous legal institutions. This article argues, however, that such participation may be required under international law. Further, participation may help to legitimize counterinsurgency goals in the eyes of the local populace, and bring additional resources to military efforts.

In order to realize such benefits, this article argues that military commanders must make a commitment to the use of indigenous criminal justice systems through all stages of a counterinsurgency campaign - during pre-deployment planning, active combat, and post-conflict rebuilding efforts.