The Laws of Rule


Law, Politics, Podcasts


Regulating Irregular Warfare (Boring Theory)

Apr 13, 2011

I am suspicious of theory, but I like Lawrence Lessig’s “Code is Law”. I started playing with it mostly because it was recommended to me by my favourite techy. But I really fell for it when I realised how well it manages to group complex phenomena into manageable categories relevant for law, how it let’s you think about agency in a grounded and legal way (things we do and how those verbs are regulated). Best of all, “Code” theory makes no pretension to explain everything, but does do a phenomenal job of explaining the evolution of law and policy…mainly because it’s central question is “What is the mix that regulates best?”.

Lessig posted a lecture and presentation on YouTube this week and it is a great introduction to what is the horribly under-researched area of poly-centric regulation. In my work on corporate accountability, I have found it really helpful. Although Lessig designed the approach to grapple with regulating cyberspace, I am beginning to think it is at least useful for thinking about the regulation of anything trans-national and sociologically complex.


With that in mind, I have started to use it in thinking about my main interest, how to regulate the violence of war (‘armed conflict’ to the lawyers in the house) and whether or not the rules we have – international humanitarian law and international criminal law – are appropriate for the problems posed by irregular armed conflict. Here’s an excerpt from a chapter I am working on, which is in turn based on my review of director Mark Eberle’s film The Most Secret Place on Earth in the Spring 2010 edition of DOX, the European documentary film magazine. Comments welcome of course.

“Consider, by way of introduction to this ‘code’ of irregular violence in war, the constraint of what Lessig calls “architecture”, both the natural and built world, what I will call materiality. There are several ways in which architecture acts as a constraint in irregular armed conflict. The first is the material force that can be brought to bear, or the technology of firepower. In the regular armed conflicts of the twentieth century, superiority of air power was shown to be decisive in the strategic balance, displacing the primacy of naval supremacy in the previous century. Similarly, on the battlefield, armor displaced the advantages afforded by competing infantry tactics formations, which themselves had been transformed less than a century earlier by the invention of the conoidal bullet, the rifled barrel and the introduction of rapid fire weapons. And for the technologies of both air power and armor, there were physical constraints. While strategically significant, air power could be rendered tactically ineffective by weather, in particular low and thick cloud cover. On the ground, NATO’s strategy for land war in Europe revolved around the use of armor to block a Warsaw Pact advance along three possible routes, perhaps the most famous being the Fulda gap, an area of lowlands, bordered by mountains, to the east of Frankfurt. NATO planning anticipated that the Fulda gap would be the site of a major tank battle in the event of war. Technology such as attack helicopters and tank-busting aircraft – both used in the Gulf War, invasion of Iraq and Afghanistan – were originally developed for this eventuality.

Insurgents have been known to possess air power and even small navies, but these are rarely pack the strategic weight that the incumbent forces inevitably have access to. Insurgencies are therefore primarily land-based (with some interesting exceptions, such as today’s Somali pirates or the MEND rebels in the Niger delta, although both arguably have land bases), and while some have artillery, rarely do they possess armor in numbers that would present a challenge to incumbent armor. Over time, however, the evolution of infantry-based weapons that carry a greater punch – notably portable rocket-based anti-armor or anti-aircraft systems – has contributed significantly to leveling the battle-field between insurgents and incumbents. Arguably one of the most important technological developments for insurgent infantry was the development of the Kalishnikov rifle, a light-weight assault rifle perfectly suited to the remote conditions most insurgents were forced to endure (it required little maintenance and would reliably fire in conditions most other weapons would break-down i.e. full of sand or dirt). Reliability of the basic infantry weapon meant greater independence of movement and the ability for larger forces to break out into smaller groups.

In addition, insurgents have shown themselves adept at adapting technology to their own uses. In Afghanistan, the Taliban turned old Soviet anti-aircraft guns on NATO ground forces. In Gaza, Islamist and other militant factions manufactured home-made rockets to fire across the border at Israeli towns. In the immediate aftermath of the US invasion of Iraq, insurgents looted the unguarded stocks of artillery shells of the Iraqi army and turned the thousands of looted shells into improvised explosive devices (IEDs), to deadly and sustained effect. Thus, while technology favours state based forces who can afford to buy the large and powerful weapon systems, it has also enabled rebel forces to raise the cost of military encounters significantly and at time level the battle-field with far better resourced armies. Borrowing from the world of digital information processing (uh, computers), this is what Lessig might call the shift in technological use from “read only” (RO) use to “read-write” (RW) use.

Technology interacts with geography or space, both also aspects of architecture. As discussed earlier in this chapter, the primary function of space is through the role of practical forms of support, not least access to a pool of recruits. This would suggest that insurgents tend to locate in urban areas. Yet, the typical image is of the insurgent seeking refuge in the jungle or the mountains. The major battles for the urban space – as in the battle for Algiers, Beirut in 1982, San Salvador in 1989 – are rarer and inevitably fateful for one side or the other. Indeed, Kalyvas (2006) finds a strong correlation between rurality and sustained rebellion, arguing that it is not as easy to hide out in urban areas precisely because of the problem of defection and the risk of informers giving away insurgent positions. At the same time, insurgents need rear bases and supply lines, things which are hard to maintain in the heart of incumbent controlled urban territory.

The twentieth century conflicts in South East Asia are perhaps the most well known – and devastating – examples of these constraints of architecture can influence the conduct of irregular conflict. By 1961, when US military advisers began arriving in Vietnam in their thousands, the CIA had already mustered “La Armée Clandestine” across the border in Loas, a force of over 9000 tribesman (which would later rise to almost 30,000), mostly from the Hmong people. The Armée was led by General Vang Pao, known as “VP” to his CIA handlers. Their mission was to fight the Soviet and North Vietnamese-backed guerillas, the Pathet Lao, in a civil war that had been carefully stoked by both Cold War super powers since the end of French colonial involvement in the late 1950s.

The Loation war would move from low-intensity conflict to a bombing campaign – the so-called secret war – escalating to a level greater (in terms of tones of bombs dropped) than that which had been dropped on Germany and Japan combined only twenty years earlier. That trajectory – from local civil war to devastating war machine – involved a significant technological mobilization to push back the jungle in a very remote area, including infrastructure – some 400 airstrips were built – and the chemical spraying of defoliant in an attempt to target the Ho Chi Minh trail, which ran down the eastern border of Laos into Vietnam. In the process, the recruitment and training of fighters along ethic or tribal lines was reinforced by the creation of a war economy, which both financed the military operations and offered levers of control over the population.

From the Long Chen air base, ‘VP’ planned his operations with the help of the CIA operatives based there. Air America, the CIA owned airline, deployed his fighters into battle and, as the casualties grew, flew in replacement recruits from the villages which had agreed to deal with VP. Air support, often flown by Hmong airmen, flew from Long Chen, as did regular bombing raids on Pathet Lao. As fewer Hmong men were available to farm, food insecurity became a problem, and Air America flew rice into villages. Soon, villagers turned to farming opium, a cash crop and easier to manage with fewer people available to do the work. The opium trade, feeding extraordinarily high demand among U.S. forces in Vietnam, was controlled by ‘VP’ through his control of CIA airstrips and Air America flights in and out of the villages.

Before long, the CIA and VP were sitting atop of a fully integrated war economy based on U.S. aid, the opium trade, Air America and the VPs soldiers. But the system was not sustainable. Facing mounting casualties, VP and the CIA simply demanded more: and where there were no men left to recruit, village leaders were threatened with an end to the aid flights if they did not send their children into VP’s army. At the same time, Long Chen became a center for aerial bombing of North Vietnamese positions in Laos and before long was the busiest airport in the world, with an estimated four hundred flights a day. Then, in 1968, the “secret war” was expanded even further: the declared halt in saturation bombing of North Vietnam by the U.S. marked the re-direction of that bombing into Laos in an attempt to make the Ho Chi Minh Trail impassable. The unprecedented scale of the bombing, and the increased fighting, combined to decimate the Hmong population.

From a broad historical perspective, the US war in Vietnam and Loas can be seen in some ways as a particularly nasty combination of twentieth century total war and colonial struggle. But the violence deployed shows all the signs of being constrained – regulated – by the kind of material conditions which Lessig calls “architecture”: technology, geography, topography, access to population. Access to markets and the supply and demand of labour, food and cash crops are all there as well, which Lessig also includes in his approach to regulation. Laws – Lessig’s two other “regulatory modalities” – are also present: the formal neutrality of Loas was crucial constraint in the early stages of the war, creating a division of labour in which the US military focused on Vietnam and the CIA and its Armeé Clandestine of Hmong villagers fought across the border in Laos. The very name nature of this “clandestine” war had everything to do with jurisdiction. Law, in the sense of a strategic level regulator, had a very real impact on the conduct of the war.”

Lessig’s other regulator, norms, are absent from this excerpt, but that’s only because that part of my argument needs more work. But for an excellent example of norms at work in insurgency have a look at Elizabeth Wood’s Insurgent Collective Action and Civil War in El Salvador (2003).