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This Electronic Thesis Or Dissertation Has Been Downloaded from the King’S Research Portal At This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Judicial Strategy in Insurgencies Ledwidge, Frank Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 23. Sep. 2021 Judicial Strategy in Insurgencies By Francis Andrew Ledwidge A Thesis Submitted for examination for the degree of Doctor of Philosophy at Kings College London January 2015 The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement 1 Abstract 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?’ 2 Table of Contents Abstract....................................................................................................................................2 Contents...................................................................................................................................3 Introduction Section 1 ..................................................................................................................................9 Background.................................................................................................................10 The Parameters of this thesis......................................................................................11 Methodology...............................................................................................................12 Research Questions.....................................................................................................13 Chapter Summaries.....................................................................................................14 Section 2 Insurgency and Counterinsurgency.........................................................................16 ‘Orthodox’ Doctrine....................................................................................................16 British Doctrine...........................................................................................................20 Critics of ‘Counterinsurgency’ as a concept................................................................26 Exogenous Counterinsurgency – the problem of being foreign.................................35 Insurgency, justice and military doctrine...................................................................38 Literature on Insurgent Courts...................................................................................43 Chapter One The Law and Insurgency Section 1: A legal Approach to Insurgency............................................................................48 The Status of Insurgency and international law.........................................................53 Counterinsurgency, Judicial Strategy, Occupation and the Law.................................55 Section 2: Law, Society and Insurgency..................................................................................56 3 The Importance of Law to Societies............................................................................56 An Excursion into Jurisprudence.................................................................................60 More advanced Societies and the Legitimate Monopoly of Force..............................62 Section 3 Legitimacy the Main Objective................................................................................66 What is Legitimacy?....................................................................................................68 Legitimacy and Social Capital......................................................................................69 A critique from Legal Anthropology........................................................................................70 Preceptions of Fairness and Legitimacy..................................................................................72 Obedience...................................................................................................................74 What makes people obey the law?.............................................................................75 Implications for Insurgency and Counterinsurgency of the Normative Model...........77 Parallel systems in the West.......................................................................................79 Section 4: Lawfare, synthesising Law and Insurgency............................................................81 Section 5: Strategic Lawfare and Narrative.............................................................................84 Conclusion...............................................................................................................................87 Chapter 2 Using Counterinsurgent Courts Introduction............................................................................................................................89 Section 1: Kitson’s Dilemma....................................................................................................90 The Classic Period of Insurgency.................................................................................92 Rule of Law in the Malayan Emergency......................................................................96 The Judicial Role..........................................................................................................98 4 Legal Rhetoric............................................................................................................102 Rule of Law during the Kenya Emergency.................................................................105 Law Reports in Kenya 1948-60..................................................................................107 Strategy, Narrative and Legal Legacies......................................................................108 The Diplock Courts....................................................................................................111 Section 2: Litigation Lawfare in Incumbent Courts..............................................................114 Rupture Strategy.......................................................................................................114 Rupture and the Narrative........................................................................................121 Disruptive Litigation..................................................................................................123
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