Rebel Law: Insurgents, Courts and Justice in Modern Conflict PDF
Preview Rebel Law: Insurgents, Courts and Justice in Modern Conflict
REBEL LAW FRANK LEDWIDGE Rebel Law Insurgents, Courts and Justice in Modern Conflict HURST & COMPANY, LONDON First published in the United Kingdom in 2017 by C. Hurst & Co. (Publishers) Ltd., 41 Great Russell Street, London, WC1B 3PL © Frank Ledwidge, 2017 All rights reserved. Printed in the United Kingdom Distributed in the United States, Canada and Latin America by Oxford University Press, 198 Madison Avenue, New York, NY 10016, United States of America. The right of Frank Ledwidge to be identified as the author of this publication is asserted by him in accordance with the Copyright, Designs and Patents Act, 1988. A Cataloguing-in-Publication data record for this book is available from the British Library. ISBN: 9781849047982 This book is printed using paper from registered sustainable and managed sources. www.hurstpublishers.com CONTENTS Introduction 1 1. Law, Legitimacy and Insurgency 15 2. Needing a Better Deal 27 3. Offering a Better Deal: Insurgent Courts in the Twentieth Century 47 4. Caliphates of Law: Insurgent Courts Today 65 5. Disruptive Litigation 85 6. Counterinsurgent Dilemmas: Hints from History 107 7. Twentieth-Century Counterinsurgency Judicial Strategy: The British Experience 123 8. Counterinsurgent Judicial Strategy Today 139 Conclusion 165 Notes 171 Index 209 v INTRODUCTION ‘Kingdoms are won and lost in the realms of law and legitimacy.’1 The genesis of this project lies in my work. By profession, I am a bar- rister, trained in the practice of law. For seven years, I practised my profession in England. Since the mid-1990s, I have worked in many countries and regions as an advisor on the development of institutions of justice: the Balkans, Iraq, the former Soviet republics of Central Asia, Ukraine, Afghanistan, Libya and Ethiopia. Occasionally, I have been called up to be deployed as a reserve military officer, in the Balkans and Iraq, although my trade within the military was intelli- gence. In both my military and my civilian capacity, almost every coun- try in which I have worked, apart from the United Kingdom itself, has been either in the middle of conflict or recovering from it. As a lawyer working with the day-to-day problems of ordinary people, one develops a keen awareness of the centrality of the law and ways of resolving disputes to most people. Whether those disputes arise from what we call ‘civil’ matters, relating to property or redress of grievance, or whether they revolve around criminal matters, is of central importance to the people involved. Beyond the day-to-day affairs of ordinary people, the law holds government together; after all, what is government but the authority to issue and enforce laws? What are courts but mechanisms to ensure compliance to those laws? Working in those conflict zones, it was clear that the importance of courts and laws did not diminish even in the midst of communal vio- lence or indeed civil war. On the contrary, often courts and law 1 REBEL LAW assumed an even greater importance as the struggles went on. In Kosovo, during the war itself I observed the workings of Serbian ‘secu- rity courts’ imprisoning dozens of evidently innocent men. After the war, there was huge controversy about which laws were applicable after the departure of much of the paraphernalia of the Serbian state. In Central Asia, post-9/11 state misuse of laws relating to terrorism— with attendant internment—had the effect of exacerbating what was otherwise a perfectly containable problem. I remember meeting a prosecutor in the town of Namangan in the grotesquely corrupt state of Uzbekistan where hundreds of dissidents, particularly moderate Muslim men, had been imprisoned. The reasoning was that they were practising Muslims and therefore dangerous terrorists. I outlined to the prosecutor what had happened in Northern Ireland in the 1970s, with internment resulting in increasing support for insurgent groups and antagonism towards the government. A year later, the Uzbek state went beyond imprisonment and settled on out and out murder. In May 2005, 600 people seeking some form of political change were massa- cred in Namangan’s town square. All this was largely common fare for the human rights lawyer. It was only when I served as a justice advisor for the UK military mis- sion in Helmand in Afghanistan in the early days of the disastrous war there that the real potential of courts used not against insurgents—in this case the Taliban—but by them, became very clear indeed. While the foreign mission, including myself, was trying to shore up a totally dys- functional and entirely corrupt judicial system, our opponents in the Taliban were busy demonstrating to the people of Helmand what their version of justice looked like. For very many of those people, it looked a whole lot better than the one we were working on. When I came back from Helmand, I wrote two articles. The first was published in the RUSI Journal, the second in the Journal of the Royal Society for Asian Affairs.2 In those pieces, I suggested that despite a pleth- ora of reports streaming from Afghanistan on the justice sector, and the efforts being put in to reform it, little had been written on its role in both powering and countering insurgency. The focus of the work being done in the sector had been on assessing and critiquing (largely nega- tively) the international efforts so far—often only from the point of view of development and the so-called security sector, mainly the 2
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