Thoughts on Counterinsurgency and Just War The issue of counterinsurgency both in terms of practice and theory is debated across

academia and within military and policy circles covering all aspects of COIN. There is a notable lack in the literature in how we reconcile COIN both in theory and practice with the ethical concepts laid out in Just War theory particularly jus in bello. Counterinsurgency, in general, challenges the underpinnings of Just War in such a way that makes it necessary to mediate on the Just War criterion in relation to the theory of COIN and how COIN is practiced. This essay will serve as that mediation. A note on sources and methodology. The primary Just War text I will be drawing from is Michael Walzer's Just and Unjust Wars with specific intent to use a widely read and oft cited book coupled with an author that is more secular in his understanding of Just War. Establishing a primary text and understanding of Just War allows the author to examine COIN using a rubric within a text that is widely accepted. At the same time the usage of a primary text allows the author not just an established set of ideas to judge COIN but also a way to critique the rubric itself. Just War gives us a set of ideas to work from but at the same time it is an inaccurate tool to judge COIN ethics. The inaccuracy of Just War in this regard is owing not to Just War itself but rather the inability of authors across disciplines to answer the questions: What is an insurgency and what is an counterinsurgency? The lack of an answer does not mean that Just War is an inappropriate method of analysis and thought but rather demonstrates that our ethical understandings are being outpaced by reality. Why counterinsurgency? Insurgency as a strategy and the response to it, counterinsurgency, are forms of war on the rise. Since the end of WWII, we have seen a decline of conventional set piece wars and, in their place, the rise of insurgencies whose tone, tenor, and pacing are completely different.

Conventional set piece wars are driven by armies fielded by states who adhere to internationally created laws and rules, with the ultimate act of politics and policy set aside until the end of hostilities.1 An insurgency on the other hand is driven by individuals and/or groups bearing arms for a political cause; the political is not separate from conflict but rather the conflict is purely political in nature. The problem that insurgencies present to ethical understandings rooted in the Just War idea is that the traditional view is formed around the interpretation of war as conventional. Analysis and judgments are made around the usage of force by equivalent yet separate armies produced by states that have clear lines of authority and are distinctive from each other. The insurgency and counterinsurgency provide no such analytic luxury: the insurgent has no army and flows between the role of civilian and solider with ease, the insurgent benefits from the lack of parity between his force and a state born army, and finally the insurgent and insurgency often have no clear lines of authority. The outline of the rest of this essay will first lay out what is meant by a jus in bello, establishing the three criterion that COIN challenges the most: discrimination, proportionality, and authority. Secondly, the essay will lay out what is COIN from the perspective of violence and strategy. Finally, the essay will provide examples of COIN in practice that challenge the criterion of discrimination, proportionality, and authority. What is meant by a just war? The definition I will be working from is Michael Walzer's concept of the war convention. Walzer's war convention is the articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct.2 The purpose of the war convention as Walzer sees it is to establish the duties of belligerent states, of army commanders,
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Rupert Smith, The Utility of Force: The Art of War in the Modern World (Alfred A. Knopf: New York, 2007). General Smith lists the changes from Clausewitz warfare to war in the modern world: The ends for which fight are changing from the hard objectives that decide a political outcome to those of establishing conditions in the outcome may be decided. We fight amongst the people, not on the battlefield. Our conflicts tend to be timeless, even unending. We fight so as to preserve the force rather than risking all to gain the objective. On each occasion new uses are found for old weapons and organizations which are the products of industrial war. The sides are mostly non-state, comprising some form of multi-national grouping against some non-state party or parties. 271 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books: Perseus Books Group, 2000), 44

and of individual soldiers with reference to the conduct of hostilities.3 Individual soldiers on both sides are given equivalent moral status because both sides are led to fight by their loyalty to their own states and by their lawful obedience...they face one another as moral equals.4 These moral equals engage in an activity, war, that has no equivalent in civil society; the conduct of war is a unique category of violence and aggression.5 In civil society, aggression and violence is a regulated activity with it being acceptable in many prescribed situations such as self defense. Aggression in war as Walzer argues ...a solider shoots another solider, a member of the enemy army defending his homeland...this is not called murder nor is the solider regarded after the war as a murderer.6 The only time that a solider is called a murderer and he is condemned is when he turned his weapons upon noncombatants: surrendering soldiers, civilians, the wounded and/or disarmed and surrendering men.7 For Walzer there are rules of war whereas there are no equivalent rules for murder in civil society, the moral equality of the battlefield distinguishes combat from domestic crime.8 How does Walzer then understand these rules in regards to the concepts of proportionality, discrimination, and authority? The core concept of proportionality is the idea of prohibiting excessive harm.9 Excess in this case is determined by two criterion: the pursuit of and what is necessary militarily to acquire victory and a notion of proportionality.10 The former concept defines itself; the force and its commanders must do what is necessary to bring about the successful cessation of hostilities and a restoration of prewar activities.11 The notion of proportionality is somewhat more difficult to define. Walzer proportionality as to weigh the mischief done which presumably means not only the immediate harm to individuals but also any
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ibid, 127. ibid, 127 ibid, 127-128 ibid, 128 ibid, 128 ibid, 128 ibid, 129 ibid, 129 ibid, 132

injury to the permanent interests of mankind, against the contribution that mischief makes to the end of victory.12 Walzer argues the two fold approach of necessity and proportionality, seeks to impose an economy of force with the end result being the reduction of the total amount of suffering, but also with holding open the possibility and the resumption of pre war activities.13 Walzer takes the two criterion in tandem meaning that an intelligent military strategy would include the imposition of not only the pursuit of victory but also the concept of reducing the amount of suffering that war brings to noncombatants.14 The notion of proportionality and military necessity is layered with an understanding of human rights. As Walzer argues a legitimate act of war is one that does not violate the rights of the people against whom it is directed.15 Laws that are humanitarian in character, such as the ban on rape or the intentional killing of civilians, are not just a piece of kindness but rather a just standard for soldiers to follow.16 The importance of both law and behavior are that the rules of war apply with equal force to aggressors and their adversaries, that the moral equality of soldiers requires submission to the rules of war and the war convention and the assurance of the rights of civilians.17 These are one of the forms of law enforcement in international society and they can be enforced even by criminal states against policemen who deliberately kill innocent bystanders.18 The war convention, as Walzer enunciated, assigns battlefield equality to the combatants and at the same time has a particular view on noncombatants which holds that they are men and women with rights and that they cannot be used for some military purpose, even if it is a legitimate purpose.19 The status of individuals and the basis of noncombatant immunity and necessity is laid
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ibid, 129 ibid, 130-132 ibid, 130 ibid, 135 ibid, 135. But when soldiers respect these bans, they are not acting kindly or gently or magnanimously; they are acting justly. ibid, 136 ibid, 136-137 ibid, 137

out by two principles: first that once war has begun soldiers are subject to attack at any time and second that the noncombatant cannot be attacked at any time.20 What happens when noncombatants come into the area of military operations and are subject to fire? Walzer deals with this using the principle of double effect/double intention. The principle of double effect is as follows: that conducting operations amongst a population that results in the unintended death of civilians is a legitimate act of war, the direct effect of the act is morally acceptable ie destruction of military supplies, killing of enemy soldiers etc, the intention of the actor is good that the ends are not the evil effect nor is it included in the means, and finally the good effect outweighs the evil effect and compensates for the evil effect.21 Walzer amends the principles of double effect with the concept of the double intention. The idea of double intention amends the third point of double effect adding that the actor is aware of the evil involved, he seeks to minimize it, accepting costs to himself.22 Given what Walzer has written concerning the roles of the combatant and noncombatant within the just war understanding: how does Walzer deal with counter insurgency where the roles of combatant and noncombatant are often blurred23? Walzer frames the issue of an insurgency as the product of a military occupation; the insurgent is resisting an occupant.24 Walzer begins with the how the insurgent employs violence against the occupation. The insurgent prepares ambushes not only behind natural cover but behind political and moral cover as well.25 The insurgent creates a dual role as citizens of a state that had surrendered for whom the war is over and as a solider in a struggle against the occupier.26 The dual role that the insurgent takes, in Walzer's view, erodes the underpinnings of the idea of surrender because it is an explicit agreement and exchange where the solider stops fighting in exchange for
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ibid, 138,151 Ibid, 153 ibid, 155 Walzer uses the phrase guerilla war and the word partisan whereas I will be using insurgency and insurgent. ibid, 176 Walzer, Just and Unjust Wars, 176 ibid, 177

benevolent quarantine for the duration of the war.27 Politically, surrender translates as a government that promises its citizens will stop fighting in exchange for the restoration of ordinary public life.28 If the restoration of ordinary public life is not possible, that the occupying force intentionally or unintentionally can not restore order then resistance is legitimate. But at the same time this resistance, no matter how legitimate, is a criminal activity as it opposes a legitimate authority; thus the act of resistance is legitimate but so is its punishment.29 The insurgent does not subvert the war convention by attacking civilians, this feature is not necessarily a center piece of an insurgent strategy, but rather he invites the counter insurgent to attack noncombatants.30 The dual role of the insurgent, as combatant and noncombatant, creates difficulty for the counter insurgent as the difference between the civilian and fighting population disappears and the ability to assign the distinct privileges and disabilities also disappears.31 As Walzer argues an insurgency is a special form of the levee en masse with a small part of the nation mobilized to fight with the rest of the population supporting the insurgency.32 The strategy of the insurgent is framed in terms of the war convention: they [insurgents] seek to place the onus of indiscriminate warfare on the opposing army [counter insurgent]. The guerillas themselves have to discriminate, if only to prove that they are really soldiers (and not enemies) of the people.33 This plays out at the tactical level as the insurgent know who their enemies are, and they know where they are34, they fight in small groups and cells with small arms and generally close to the enemy; they leverage their dual role as an advantage over the readily identifiable counter insurgent force.
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ibid, 177 ibid, 177 ibid, 178 ibid, 179-180 ibid, 180 ibid, 180 ibid, 180 ibid, 180

If the civilian population is the key to the insurgents' success then what rights are afforded to the supporters of the insurgency? The dual role of the insurgent as civilian and solider is not the only source of trouble for the counter insurgent, but also the fact that insurgents fight from amongst the civilian population. The insurgent is very close and connected to the population as a whole to the point where the day to day existence of the people around them than is ever the case with the conventional armies.35 In addition to living among the population, the insurgent fights where they reside; their military positions are not bases, posts, camps, forts, or strongholds but villages.36 This intimate shield relationship is inverse of the soldier's relationship with the civilian; the insurgent accepts the protection of civilians whereas the solider protects the civilian.37 The shield issue comes into sharp relief when engaging in counter insurgency because it becomes necessary to, as Walzer argues, isolate the guerillas from the civilian population, to cut them off from their protection and at the same time shield civilians from the fighting.38 The end result is that the solider as counter insurgent is forced to engage in police work for, according to Walzer, the status of hostile civilians is no different39 than enemy combatants. Walzer states that the use of police tactics and operations like interrogations, searches, seizures of property, curfews are all acceptable forms of police work whereas torture, hostage taking, and internment of innocent men and women are not.40 In these circumstances civilians have rights...if their liberty can be temporarily abridged in a variety of ways, it is not entirely forfeit nor are their lives at risk.41 A critique of Walzer. To begin I do not completely disagree with Walzer but rather the position I will subsequently develop should be considered an evolution of the Just War idea that Walzer has
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ibid, 184 ibid, 184 ibid, 184-185 ibid, 186 Walzer, Just and Unjust Wars, 187 ibid, 187-188 ibid, 188

presented. By evolution I mean that counterinsurgency does not do away with the Just War idea but rather the notion has to be shaped to a wholly different kind of war. Walzer inherits his understanding of Just War from the perspective of conventional war. As a result, Walzer's view of guerilla war and insurgencies is black and white; the insurgency arises as a direct result of military occupation and by default the guerilla's only political goal is to rid the nation of the occupier. Furthermore, the idea that Just War judgments are shaped by an army with distinctive uniform and insignia and put forth by a force that seeks to leverage occupied territory for political or policy goal is antiquated; this description does not describe strongly the wars fought post 1980 nor the current conflicts that the United States finds itself in. Yet, the factors and concerns that make up the jus in bello judgment are still present; the way actors engage in violence and the issues of proportionality, discrimination, and authority are still revalent. The largest difference between being engaged in a conventional war and a counterinsurgency is how the violence in conflict relates to the political goals. In a conventional war the strategy, operations, and tactics flow from a set policy; the act of politics including negotiations, leverage, restructuring of the defeated state comes after the fighting stops. In insurgency and counter insurgency there is a set policy from which strategy, operations, and tactics flow but the act of politics immerse every action. The fighting takes place in and for a political space. Thus the ideas of proportionality, discrimination, and authority take form in reference to a) the violence that evolves as an insurgency and then the ensuing counter insurgency response and b) the political goals and strategy that is created as a result of the violence. The violence that occurs with an insurgency can be defined as armed combat within the boundaries of a recognized sovereign entity between parties subject to a common authority at the outset of hostilities.42 The definition that Kalyvas provides can include the state and more
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Kalyvas, Stathis The Logic of Violence in Civil War. (Cambridge University Press 2009), 17. Even though the title of Stathis' work invokes civil war the work as a whole including the cited definition can be generalized to

importantly the idea that both insurgent and counter insurgent are subject to a common authority at the beginning of the conflict.43 The insurgency has no front lines and the counterinsurgency maintains no front with the insurgent.44 As a result, the nature of sovereignty during the insurgency is fragmented and segmented as the traditional monopoly of violence that the state holds breaks down by a territorially based armed challenged.45 Sovereignty becomes defined by incumbent control, insurgent control, and contested control with the counter insurgent and insurgent facing three distinct population sets: those under their full control, shared with their rival, and completely outside their control.46 While sovereignty breaks down and each side of the conflict begin to engage the other the immediate issue becomes identification.47 A war that has no fronts waged amongst a population presents both sides with the differentiating between who is a friend and who is an enemy and more importantly who will support the counter insurgent and the insurgent.48 Thus the need to identify the enemy and gain the support of the population puts collaboration with the insurgent or the counter insurgent at the forefront of each sides concerns.49 The struggle to find collaborators and prevent defections leads the insurgent and the counter insurgent to increase their respective control. As Kalyvas argues the higher the level of control exercised by an actor, the higher the rate of collaboration with this actor---and, inversely, the lower the rate of

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include any internal conflict.. The idea of common authority at the onset of hostilities works for anti-colonial insurgencies like the French in Algeria and third force counter insurgencies like the United States in Iraq and Afghanistan where the third force occupies the territory and governs the people As Kalyvas argues ...the boundaries separating two or more sides in an irregular war are blurred and fluid. 88 ibid, 88. As Kalyvas defines segmented as when two political actors or more exercise full sovereignty over the distinct parts of the territory of the state. And he defines fragmented as when two political actors or more exercise limited sovereignty over the same part of the territory of the state. 88-89 ibid,, 88 ibid, 89 Kalyvas, The Logic of Violence in Civil War, 90-91. Support in this case does not necessarily mean attitudinal nor observed from behavior of the population. In fact as Kalyvas develops his argument what determines the behavior of the population is the how much control that the insurgent or counter insurgent has. Ibid, 91-105. With the concept of collaboration is also defection; that is with whom the population identifies with is a flexible identity and can change over time. Kalyvas lays out three types of defection: noncompliance, informing, and switching sides. These types of defections can be collective, individual or individual and collective with the defection occurring in public or private.

defection.50 The population is not only fought amongst but through; the population is the active weapon of war. While the basis of violence in a counterinsurgency centers around establishing control of the population, using this understanding alone to describe a counter insurgency from an ethical stand point is unsatisfactory. Though the above understanding does provide a vital thread, what is needed to understand jus in bello and counter insurgency is the concept of the monopoly of violence. Both the insurgent and counter insurgent are fighting to create the basis of a state that includes the control of the population and the creation of a social contract. The establishment of the monopoly of violence, or its reassertion, creates the state but the politics namely the creation of a social contract that governs the relationship between the government and the people and the relationships amongst the people.51 Thus insurgencies and counter insurgencies are also deeply social in nature.52 Kilcullen defines counter insurgency as an umbrella term that describes the complete range of measures that governments take to defeat insurgencies. These measures may be political, administrative, military, economic, psychological, or informational, and are almost always used in combination.53 Roger Trinquier, of French counter insurgency fame, described counter insurgency as an interlocking system of actions---political, economic, psychological, military---that aims at the overthrow of the established authority in a country and its replacement by another regime. To achieve this end, the aggressor [insurgent] tries to exploit the internal tensions of the country attackedideological, social, religious, economic---any conflict liable to have a profound influence on the population to be conquered.54
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Ibid, 132. The state is being defined here as the bearer of the monopolization of violence and the external sovereignty of the state. The social contract is composed of the internal institutions both governmental and non governmental in addition to other sub state types of organization like social groups, tribes, etc. Social in the sense that involves its facts of social life and social involvement; a war of people for the people. Kilcullen, David, Counterinsurgency, (Oxford: Oxford University Press, 2010). Kilcullen defines an insurgency using the U.S. Army and U.S Marine Corps manual on counterinsurgency FM3-24. The definition provided is an organized movement aimed at the overthrow of a constituted government through the use of subversion and armed conflict...stated another way, an insurgency is an organized, protracted, politico-military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control. Kilcullen, 1-2. Trinquier, Roger, Modern Warfare: A French View of Counterinsurgency. (Praeger: Praeger Security

How do we understand jus in bello with a focus on proportionality, discrimination and just authority? We must couch the aforementioned criterion within the bounds of the establishment of the monopoly of violence and the creation of a social contract. Meaning that, for counter insurgency, the ideas of proportionality and discrimination are closely link and in most circumstances inseparable. So far proportionality has been thought of as an expression of force, that is an act that the solider is ultimately in control of: the use of force among a populated area. In counter insurgency, the use of force in respects to the problem at hand is a combination of the amount of soldiers brought to bear and the amount of force those soldiers use.55 A higher number of soldiers with the higher degree of control over a space coupled with the highly judicious use of force is ideal in both promoting discrimination between active insurgents and the population and also minimizing collateral harm to the population. Note this characterization does not necessarily discount the large degree of violence required to overtake insurgent strongholds, the aim is to produce a monopoly of violence in areas under counter insurgent control, minimize the violence to the population, and exert the nonviolent aspects of state control.56 The close linkage of proportionality and discrimination came into the fore ground during the Surge in Iraq and the Surge in Afghanistan.57 The basis of the Surge in Iraq was the degeneration of the situation from the initial invasion in 2003 to late 2006/2007 when the Surge was implemented and executed. In the meanwhile, the United States had adopted a light foot print strategy that located bases and the placement of troops away from city centers and the individual Iraqi neighborhoods. This strategy of reducing the popular resentment against the
International, 2006), 5 The amount of force and what under circumstances force can be used are rules of engagement. Within the American experience of counter insurgency generally the rules of engagement are tightened and highly regulated. For example see http://www.time.com/time/nation/article/0,8599,2005733,00.html for General McCrystals ROEs in Afghanistan and the changes that General Petraeus 56 The strategic/operational interpretation would be the Clear, Hold, Build strategy Colonel H.R. McMaster in Tal Afar. Kilcullen provides an operational/tactical view his Twenty-eight Articles: Fundamentals of Company-level Counterinsurgency in Counterinsurgency, 29-49. 57 The Iraq Surge and Afghan Surge...
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occupation by keeping foreign troops out of the Iraqis' faces and emphasizing the training and supporting Iraqi forces played well on paper but not in reality.58 The reality of the situation as Kilcullen describes was that an immense tide of blood washed over Iraq and large parts of Baghdad were ethnically cleansed; entire populations were killed or driven out.59 The implementation of the Surge included adding 21,500 US troops (approximately five brigades) working alongside Iraqi units that saw them pursue a well-defined mission: to help Iraqis clear and secure neighborhoods, to help them protect the local population, and to help ensure that the Iraqi forces left behind are capable of providing the security that Baghdad needs.60 The focus of the Surge at the strategic level was protecting the population with the operational expression being on local community engagement and generating bottom up buy-in from ordinary Iraqis and securing the population with joint security stations composed of US and Iraqi troops.61 The Surge was not just an incredible success from the perspective of protecting the population and reducing violence but also monopolizing violence into the hands of the Coalition and the government of Iraq.62 The surge in Afghanistan comes under different circumstances. The Iraq Surge occurred within the context of intra communal war between the Sunnis and Shiites with certain

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Kilcullen, The Accidental Guerrilla, 123-124, 129: While this made good sense in principle, the reality was very different: because the troops did not live in the muhalla, the Iraqi neighborhood, they saw very little of locals, did not know them, had no notion of who to trust and how far, and adopted what Chris Cavoli would call a repetitive raiding approach...rather than one of persistent presence. Special operations forces, tasked with Direct Action to kill or capture High Value Targets had even less contact with the population. Kilcullen, The Accidental Guerilla, 125-126. Kilcullen goes further: Hundreds of Iraqis died every week--Shi'ites in AQI and insurgent terrorist attacks, Sunnis in death squad executions by Shi'a communitarian militias retaliating for those attacks. Civilian deaths peaked between September 2006 and January 2007,with between 2,700 and 3,800 civilians killed per month. In December 2006, the worst month of the entire war for civilian casualties, killings peaked at around 125 per night, more than half of whom were people killed inside Baghdad city limits. Kilcullen, The Accidental Guerilla, 128-129 citing The White House, President's Address to the Nation, January 10, 2007; www.whitehouse.gov/news/releases/2007/01/20070110-7.html Kilcullen, The Accidental Guerrilla, 138. Petraeus hearing post surge see: http://www.defense.gov/pubs/pdfs/Petraeus-Testimony20070910.pdf and http://www.defense.gov/pubs/pdfs/Petraeus-Testimony-Slides20070910.pdf. In case this monopolizing violence refers to the limiting of Al Qaeda in Iraq's ability to commit large acts of terrorism and separating it away from the Sunni population while at the same time forcing Shia militias to lay down arms at minimum or at maximum enter the political process.

institutions of the Iraqi government playing an active role in the violence.63 The Surge was ultimately successful, in regards to the government and population, because none of the insurgents presented an alternative form of governance64; the issue was the reduction of violence. The recently implemented surge in Afghanistan is not necessarily aimed at reducing the amount of violence but rather forcing the Taliban into a political agreement with the Karzai government. As Kilcullen describes, the situation in Afghanistan ...especially in the south, he [Karzai] appointed tribal outsiders or members of minority tribes as provincial governors, leaving the stronger majority tribes disenfranchised...the provincial governors have also, at times, had an incentive to channel or divert state benefits to their tribal or personal supporters, further alienating the majority tribes.65 The Taliban's strategy is then to exploit the corruption and misappropriation/misuse of power. This is a simplification of the political goals of the Taliban but its oppositional role against the Karzai cannot be over stated; the issue with the Taliban is not its political objectives but rather its wholly undemocratic and very violent nature. The main thrust of the surge in Afghanistan has been to target the middle of the Taliban hierarchy; not the leaders who will eventually negotiate and not those who are so low on the hierarchy that their very Taliban association is not concrete. How do we then view this strategy in reference to the concepts of proportionality and discrimination? The issue here is not the wholesale reduction of violence but rather the fact that the violence used is being focused so much that only members of the Taliban are targeted66. Whereas proportionality and discrimination can be within influence and/or control of the
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Kilcullen describes the situation as: ...one key reason was that at this time government institutions were heavily penetrated by Shi'a sectarian extremists who used them to deny services to members of the Sunni community, or to actively kill or drive the Sunnis. This in turn drove the Sunnis into the arms of extremists, whose violence further convinced the government that is needed to continue suppressing the Sunnis. The Accidental Guerilla, 126. Killcullen, David, Counter-insurgency Redux, Survival 48 no.4 (Winter 2006-2007), pp 111-130. Kilcullen, The Accidental Guerrilla, 51 This is one example of discrimination other than a high number of troops establishing control. Given the impossibility of controlling large swaths of the Afghan population as a result of the rather large rural distribution of said population. Given the needle point focus of the kill/capture on middle of the Taliban hierarchy and with the end result being to force the negotiation of the Taliban with the central government in Kabul, this program might be the most ethical given the weaknesses in the structure of the Afghan campaign.

soldiers and military, the criterion of just authority is much more difficult to determine. Consider the idea that sovereignty within a counter insurgency is inherently fractured between the areas that are under the control of the insurgents and counter insurgency, we must also layer on that control within the counter insurgent's territory is fractured. The fracturing within the territory of the counter insurgent is born out the reliance of the counter insurgent on the indigenous forces namely the army and the police.67 How do we then understand the concept of just authority within counter insurgency? Unlike the use of force (discrimination and proportionality) creating a just authority requires a consolidation of interests of parties that might not see their interests align with the counter insurgents.68 For instance using the example of the Iraq War, the authority under which the war was waged did not change (the United States Government) but the authority waging the conflict in theater did change from the Coalition Provisional Government/Interim Iraqi government, elect Iraqi government under Jafari, and finally the Iraq government under Maliki. In every case, the United States' military is waging a war on the behalf of a government whose interests are separate from the interests of the counter insurgent. Thus how do we view this in light of a just war? The constitution or the reconstitution of the national police and national army is not enough. One can reconstitute the state but if the protectors of the social contract, the police, are purging populations wholesale then the act of reconstituting the police and army is wholly unjust. The criterion for the renew authority using force has to be the same as the counter insurgent: a minimization of violence to the population with aim for controlling territory coupled with the population's protection. What about the case of the Taliban and integrating the movement into the government? The choice of reaching an agreement and ending the conflict would indeed minimize the violence to the population and, as a result of the sustained campaign of targeting, the Taliban
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The army in this case ensures the sovereignty of the nation where the police ensures the safety of the people. The army essentially maintains its distance from the population whereas the police is embedded with the people. The army maintains the state (state sovereignty/monopoly of violence), police maintain the nation (social contract between the state and people and the social contract amongst the people). Exum, Andrew, Designing a Political Campaign for Afghanistan (Center for New America Security 2011)

would be harder pressed to commit large scale acts of violence. Jus in bello is a practical form of justice rooted in the actual practice of war and fighting. The ideas of discrimination, proportionality, and just authority are present both in conventional war and in counter insurgency and yet our ethics are more developed for the former than the latter, though the latter occurs more often now. Jus in bello deals with the violence in war and the violence in conventional war and counter insurgency are widely different. Conventional war centers around the elimination of the enemy while counter insurgency focuses on, at its core, controlling the population while targeting the insurgent. The ethical system or systems that emerges from counter insurgency are not wholly different from those that come from conventional war but rather requires an application of what has been written to what is being done. The pursuit of war and engagement in counter insurgency has rendered our ethical understandings rooted in the jus in bello tradition not moot just antiquated. It is a system of ethics and judgments that describes wars that rarely occur and needs to be updated. The great danger is when our reality outpaces our ethics.