1 Counter-insurgency (COIN) was strongly associated with the Cold War counter-insurgency campaigns fought by the British in Malaya, Oman, and Aden, and the US in Vietnam. France, while not embracing the expression ‘counter-insurgency’, also has a rich experience in fighting insurgencies, notably in Algeria and Indochina.

2 Notably British Army Field Manual, Vol. 1, Part 10, Countering Insurgency, Army Code 71876, October 2009, (GB COIN), and the U.S. Army and Marine Corps Counterinsurgency Field Manual, U.S. Army Field Manual No. 3-24, Counterinsurgency, Marine Corps Warfighting Publication No. 3-33.5, December 2006 (hereafter FM 3-24).

3 Remarks by Lyndon B. Johnson at a Dinner Meeting of the Texas Electric Cooperatives, Inc., 4 May 1965, available at: http://www.presidency.ucsb.edu/ws/index.php?pid=26942#axzz1uDRuoCji (last visited 7 May 2012).

4 Remarks by President Obama on a New Strategy for Afghanistan and Pakistan, 27 March 2009, available at: http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-on-a-New-Strategy-for-Afghanistan-and-Pakistan/ (last visited 10 April 2012).

5 Counter-insurgency places much emphasis on the need for effective and timely intelligence-gathering as success criteria for any mission. The counter-insurgents must not only strive to understand the enemy, as in conventional warfare, but also gather a better knowledge of the local populations, their needs, concerns, and support rationale. See generally David Kilcullen, ‘Intelligence’, in Thomas Rid and Thomas Keaney (eds), Understanding Counterinsurgency: Doctrine, Operations, and Challenges, Routledge, Oxford and New York, 2010, pp. 141–159.

6 FM 3-24, above note 2, sections 1–149 and 1–153.

7 According to the ICRC Director of Operations: ‘Over the past decade, deliberate attacks against humanitarian personnel have become commonplace. They are clearly illegal and unacceptable and must be condemned in the strongest terms. The rejection of humanitarians is, however, the by-product of policies that integrate humanitarian aid into political and military strategies’, Opinion, in Stars and Stripes, 15 January 2011.

8 See below, in ‘Does a “winning hearts and minds” strategy clash with IHL principles?’

9 See below, in Section ‘Does humanitarian assistance win hearts and minds?’ of this article.

10 Ibid.

11 Gompert, David C. and Gordon, John IV et al. , War by Other Means: Building Complete and Balanced Capabilities for Counterinsurgency, RAND National Defense Research Institute, Santa Monica, CA, 2008Google Scholar, Appendix A, Table A.1 (hereafter RAND Report). The RAND National Defense Research Institute suggested four broad types of insurgency. Type I insurgencies, deemed ‘local’ and similar to the situation in Colombia, are self-contained in ‘cause, scope and effects’; they are seen as the most common type, making up the best part of 60% of insurgencies as of 2007. In Type II, called ‘local-international’, the insurgents receive external support such as money, arms, expertise, fighters and media coverage; according to the Institute nearly 35% of insurgencies have been Type II since the end of World War II. In Type III, a local insurgency receiving external support can become the platform for a wider regional or even global struggle; these have only formed 5% of insurgencies since World War II, but they are seen to be the fastest growing type of insurgency, especially in the Muslim world, and combine local political aims with global religious aims and means. The Institute sees Type III insurgencies, as the most relevant for the US today, not only as it counters ‘Islamic insurgencies’ but also for future insurgencies with similar traits. Finally, Type IV ‘global’ insurgencies – targeting the nation-state order itself – are few and far between.

12 At the time of writing, General Petraeus is head of the Central Intelligence Agency. He is seen as the chief architect of the present US counter-insurgency doctrine.

13 Kilcullen's, DavidThe Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One, Oxford University Press, Oxford, 2009Google Scholar, was listed as a Washington Post bestseller. For a discussion on counter-insurgency by Kilcullen, see ‘Interview with David Kilcullen’, in International Review of the Red Cross, Vol. 93, No. 883, September 2011, pp. 1–15. Counter-insurgency terminology is now even found in the popular British tabloid press: ‘It's much easier getting shot at than gaining trust…we're trying to correct 30 years of mayhem with words, not weapons’. Virginia Wheeler, ‘Sun joins “Mighty Munch” marines on hearts and minds mission’, in The Sun, available at: http://www.thesun.co.uk/sol/homepage/news/campaigns/our_boys/3646913/Sun-joins-Marines-involved-in-the-most-advanced-counter-insurgency-strategy-in-HISTORY-in-Afghanistan.html (last visited 13 April 2012). See also Chris Hughes, ‘Afghanistan: the battle for hearts and minds: beating the Taliban with a toy gun’, in The Mirror, available at: http://www.mirror.co.uk/news/top-stories/2010/09/13/beating-the-taliban-with-a-toy-gun-115875-22557453/ (last visited 13 April 2012).

14 Interview with General Sir Rupert Smith, in International Review of the Red Cross, Vol. 88, No. 864, December 2006, pp. 719 and 724.

15 GB COIN, above note 2, p. 1.1.

16 Center for Army Lessons Learned (CALL), PRT Playbook: Tactics, Techniques, and Procedures, Handbook No. 07-34, September 2007, p. 1, available at: http://usacac.army.mil/cac2/call/docs/07-34/07-34.pdf (last visited 22 May 2012).

17 GB COIN, above note 2, p. 1.1.

18 See RAND Report, above note 11, pp. 90–91.

19 See Peter Mansoor, ‘Army’, in T. Rid and T. Keaney, above note 5, p. 82.

20 See RAND Report, above note 11, pp. 92–93.

21 See D. Kilcullen, The Accidental Guerrilla, above note 13, p. 69.

22 FM 3-24, above note 2, section 2.2.

23 Ibid., sections 2.3 and 2.4.

24 Ibid., section 2.8.

25 Ibid., section 2.5.

26 Ibid., section 2.16.

27 See P. Mansoor, above note 19, p. 82.

28 FM 3-24, section 2.12.

29 Ibid., section 2.29.

30 Ibid., Table 5–4, ‘Considerations for developing the essential services LLO [logical line of operations]’.

31 Ibid., section 2.29. Listed as examples of NGOs are the ICRC, World Vision, Médecins sans Frontières, CARE, OXFAM, Save the Children, Mercy Corps, and Academy for Educational Development.

32 Ibid.

33 Kevin Baron, ‘Mixing fighting and food in Afghanistan’, in Stars and Stripes, 15 September 2009, available at: http://www.stripes.com/news/mixing-fighting-and-food-in-afghanistan-1.94760 (last visited 24 May 2012).

34 ‘Taliban raids widen in parts of Afghanistan’, in New York Times, 1 September 2003, available at: http://www.nytimes.com/2003/09/01/world/taliban-raids-widen-in-parts-of-afghanistan.html?pagewanted=all&src=pm (last visited 11 May 2012).

35 For an overview of state obligations under IHL, see ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared by the ICRC for the 31st International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 28 November–1 December 2011, Geneva, October 2011 (hereafter ICRC Challenges Report), pp. 23–26, available at: http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf (last visited 11 May 2012).

36 Council of Delegates of the International Red Cross and Red Crescent Movement, Seoul, Republic of Korea, 16–18 November 2005, Neutral and Independent Humanitarian Action, Consolidated report of the Commissions, 18 November 2005, p. 3, available at: http://www.icrc.org/eng/assets/files/other/cd2005_commissionsniha_consolreport_final_eng_22.11.pdf (last visited 24 May 2012).

37 ICRC Challenges Report, above note 35, p. 23.

38 Yves Daccord, ‘Protection of civilians: lessons from Libya and Ivory Coast’, editorial, 10 May 2011, available at: http://www.icrc.org/eng/resources/documents/article/editorial/protection-civilians-article-2011-05-18.htm (last visited 11 May 2012).

39 Krähenbühl, Pierre, ‘The ICRC's approach to contemporary security challenges: a future for independent and neutral humanitarian action’, in International Review of the Red Cross, Vol. 86, No. 855, 2004, p. 510Google Scholar.

40 Ibid., p. 513.

41 Ibid., p. 512.

42 Michiel Hofman and Sophie Delaunay, ‘Afghanistan: a return to humanitarian action’, special report, Médecins sans Frontières, 11 March 2010, p. 2, available at: http://www.doctorswithoutborders.org/publications/article.cfm?id=4311&cat=special-report (last visited 11 May 2012).

43 Ibid., pp. 3 and 6.

44 See International Rescue Committee, ‘Aid groups urge NATO to separate military and humanitarian activities to protect civilians in afghanistan’, available at: http://www.rescue.org/news/aid-groups-urge-nato-separate-military-and-humanitarian-activities-protect-civilians-afghanista-4463, and the letter itself, available at: http://www.nrc.no/arch/_img/9390968.pdf (both last visited 11 May 2012).

45 Ibid.

46 International Crisis Group, Aid and Conflict in Afghanistan, Asia Report No. 210, 4 August 2011, p. 21, executive summary and recommendations available at: http://www.crisisgroup.org/en/regions/asia/south-asia/afghanistan/210-aid-and-conflict-in-afghanistan.aspx (last visited 24 May 2012).

47 Malkasian, Carter and Meyerle, Gerald, Provincial Reconstruction Teams: How Do We Know They Work?, United States Army War College, Strategic Studies Institute, March 2009, p. 1CrossRefGoogle Scholar, available at: http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubid=911 (last visited 11 May 2012).

48 U.S. Center for Army Lessons Learned, Afghanistan: Provincial Reconstruction Team – Observations, Insights, and Lessons, Handbook, No. 11–16, February 2011, Introduction, available at: http://usacac.army.mil/cac2/call/docs/11-16/11-16.pdf (last visited 11 May 2012).

49 C. Malkasian and G. Meyerle, above note 47, p. 6.

50 Ibid.

51 Perito, Robert M., The U.S. Experience with Provincial Reconstruction Teams in Afghanistan, Special Report 152, United States Institute for Peace, October 2005Google Scholar, available at: http://www.usip.org/files/resources/sr152.pdf (last visited 11 May 2012).

52 Stuart Gordon, Winning Hearts and Minds? Examining the Relationship between Aid and Security in Afghanistan's Helmand Province, April 2011, Feinstein International Center, Tufts University, available at: http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_589.pdf (last visited 25 May 2012).

53 Ibid.

54 P. Krähenbühl, above note 39, p. 508.

55 The United Nations’ mandate of helping coalition forces and the Afghan government reconstruct and develop Afghanistan has also been cited as a reason for UN agencies not being seen as independent and impartial. See Donini, Antonio, ‘Between a rock and a hard place: integration or independence of humanitarian action?’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, pp. 141–157CrossRefGoogle Scholar.

56 Abby Stoddard, Adele Harmer, and Victoria DiDomenico, Providing Aid in Insecure Environments: 2009, Update: Trends in Violence Against Aid Workers and the Operational Response, Humanitarian Policy Group, HPG Policy Brief 34, April 2009, p. 6, available at: http://www.odi.org.uk/resources/docs/4243.pdf (last visited 11 May 2012).

57 Ibid.

58 K. Baron, above note 33.

59 Terry, Fiona, ‘The International Committee of the Red Cross in Afghanistan: reasserting the neutrality of humanitarian action’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, pp. 173–188CrossRefGoogle Scholar.

60 Supreme Court of the United States, Holder et al. v. Humanitarian Law Project et al., Decision of 21 June 2010, 561 U.S., 2010.

61 On this, see Sara Pantuliano et al., Counter-terrorism and Humanitarian Action: Tensions, Impact and Ways Forward, Humanitarian Policy Group, HPG Policy Brief 43, October 2011, available at: http://www.odi.org.uk/resources/docs/7347.pdf (last visited 11 May 2012).

62 Pierre Krähenbühl, ‘The militarization of aid and its perils’, 22 February 2011, available at: http://www.icrc.org/eng/resources/documents/article/editorial/humanitarians-danger-article-2011-02-01.htm (last visited 11 May 2012).

63 See Fiona Terry, above note 59, p. 175, ‘Civilians have paid the highest price for this instrumentalization of aid: in retaliation for “collaborating” with the enemy, insurgents have attacked villages that have accepted such aid; and villages thought to be harbouring insurgents have been bombed or raided by NATO forces on the basis of intelligence collected while doling out the “good stuff”.’

64 From the documentary Armadillo, following Danish ISAF troops deployed in Helmand Province, Afghanistan, in 2009.

65 2010 ECHO Annual Partners conference, ECHO Conference Panel Intervention, Elisabeth Rasmusson, Secretary General of Norwegian Refugee Council, available at: http://ec.europa.eu/echo/files/partners/humanitarian_aid/conferences/2010/Roundtable/NRC.pdf (last visited 11 May 2012).

66 P. Krähenbühl, above note 39, p. 513.

67 International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, para. 243.

68 See Geneva Conventions I–III, Art. 9; Geneva Convention IV (GC IV), Arts. 10 and 59; Additional Protocol I (AP I), Art. 70; Additional Protocol II, Art. 18; ICRC Challenges Report, above note 35, p. 23.

69 GC IV, Arts. 14 and 15.

70 GC IV, Art. 23.

71 See generally GC IV, Arts. 59–62; AP I, Arts. 68–71.

72 Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958Google Scholar, (hereafter Commentary on GC IV), Art. 10, pp. 96–97.

73 Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar (hereafter Commentary on AP I), Article 81, paras. 3337–3338.

74 Commentary on GC IV, above note 72, Common Article 3, p. 41.

75 Ibid.

76 The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, available at: http://www.ifrc.org/en/publications-and-reports/code-of-conduct/ (last visited 11 May 2012).

77 Ibid., para. 1.

78 Ibid., paras. 1 and 2.

79 Ibid., para. 4.

80 Humanitarian space is understood to be the space needed for relief and humanitarian agencies to be able to operate effectively in conflict situations. However, there is no commonly agreed definition of the term.

81 See, for instance, views attributed to British General Sir Gerald Templar in the ‘Report on Wilton Park Conference 1022: winning “hearts and minds” in Afghanistan: assessing the effectiveness of development aid in COIN operations’, 11–14 March 2010, p. 6, available at: http://www.eisf.eu/resources/library/1004WPCReport.pdf (last visited 11 May 2012).

82 Berman, Elin, Shapiro, Jacob N., and Felder, Joseph H., ‘Can hearts and minds be bought? The economics of counterinsurgency in Iraq’, in Journal of Political Economy, Vol. 119, No. 4, August 2011, pp. 766–819CrossRefGoogle Scholar.

83 Andrew Beath, Fotini Christia, and Ruben Enikolopov, ‘Winning hearts and minds? Evidence from a field experiment in Afghanistan’, MIT Political Science Working Paper No. 2011-14, pp. 2–3, 20, available at: http://www.humansecuritygateway.com/documents/MIT_WinningHeartsandMinds.pdf (last visited 11 May 2012).

84 Ibid., pp. 11 and 20.

85 T. E. Lawrence, ‘The 27 articles of T.E. Lawrence’, in Arab Bulletin, 20 August 1917, available at: http://wwi.lib.byu.edu/index.php/The_27_Articles_of_T.E._Lawrence (last visited 11 May 2012).

86 According to the Feinstein Center nearly 2.64 billion US dollars were channelled through the Commanders Emergency Response Program for the Provincial Reconstruction Teams alone. See Paul Fishstein and Andrew Wilder, Winning Hearts and Minds? Examining the Relationship between Aid and Security in Afghanistan's Helmand Province, January 2012, Feinstein International Center, Tufts University, p. 6, available at: http://sites.tufts.edu/feinstein/files/2012/01/WinningHearts-Final.pdf.

87 Ibid., p. 54.

88 Ibid.

89 Ibid.

90 ‘Report on Wilton Park Conference 1022’, above note 81, p. 2.

91 Quoted in George Packer, ‘Knowing the enemy: can social scientists redefine the “war on terror”?’, in New Yorker Magazine, 18 December 2006, available at: http://www.newyorker.com/archive/2006/12/18/061218fa_fact2?currentPage=all (last visited 11 May 2012).

92 RAND Report, above note 11, p. 94.

93 Ibid., p. 92.

94 S. Gordon, above note 52, p. 42.

95 Ibid.

96 Ibid., pp. 42–43.

97 P. Fishstein and A. Wilder, above note 86, pp. 42–51.

98 International Crisis Group, above note 46, VI Conclusion.

99 Colonel John M. Spiszer, ‘Counterinsurgency in Afghanistan: lessons learned by a brigade combat team’, in Military Review, January–February 2011, pp. 73–74, available at: http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20110228_art012.pdf (last visited 11 May 2012).

100 U.S. Department of the Army, ‘Tactics in Counterinsurgency’, FM 3-24.2, April 2009, Appendix C: ‘Twenty-eight articles: fundamentals of company-level counterinsurgency’, p. C-4, point 13, emphasis added.

101 Sebastian Junger and Tim Hetherington (dir.), Restrepo. See http://restrepothemovie.com/ (last visited 11 May 2012).

102 Ibid.

103 Ibid., and specific clip of Specialist Kyle Steiner on ‘hearts and minds’, available at: http://www.youtube.com/watch?v=ik9dVd5IutM (last visited 11 May 2012).

104 P. Fishstein and A. Wilder, above note 86, p. 61.

105 Ibid., p. 64.

106 Ibid.

107 See Thomas Rid and Thomas Keaney, ‘Counterinsurgency in context’, in T. Rid and T. Keaney, above note 5, pp. 255–260.

108 US Department of Defense, Quadrennial Defense Review Report, February 2010, p. 5, available at: http://www.defense.gov/qdr/ (last visited 11 May 2012).

109 Ibid.

110 UK Government, Securing Britain in an Age of Uncertainty: The Strategic Defence and Security Review, October 2010, p. 16, available at: http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_191634.pdf (last visited 11 May 2012). The UK is also looking to prevention and civilian action rather than military intervention in future conflicts and zones of instability: ‘to help bring enduring stability to such countries, we [the UK] will increase significantly our support to conflict prevention and poverty reduction. We will deliver this support through an integrated approach that brings together our diplomatic, development, defence and intelligence resources’ (ibid., p. 44).

111 ICRC Challenges Report, above note 35, pp. 5–6.

112 US Department of Defense, above note 108, p. 20.

113 Ibid.

114 D. Kilcullen, The Accidental Guerilla, above note 13, p. 284.

115 RAND Report, above note 11, p. 243.

116 Ibid., p. 244.

117 D. Kilcullen, The Accidental Guerilla, above note 13, p. 269.

118 Dean's Lecture at Yale Law School, ‘National security law, lawyers and lawyering in the Obama Administration’, by Jeh Charles Johnson, General Counsel of the Department of Defense, 22 February 2012, available at: http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448 (last visited 25 May 2012).

119 RAND Report, above note 11, p. xivii.

120 D. Kilcullen, The Accidental Guerilla, above note 13, p. 283. He also underscores that any military assistance should be aimed at dealing with poor governance, lack of development, and institutional corruption, all of which provide leverage for insurgents. Only through ‘full-spectrum’ co-operation with aid agencies, charities, educators, and departments of foreign affairs and states can this be achieved (ibid., p. 289).

121 RAND Report, above note 11, pp. 83–84, 351–353. Note that comparable approaches have been proposed by some authors for the Somali conflict. Constructive disengagement and earned engagement are just two theories being advanced, each premised on civilian rather than military, and local over international, solutions. See Bronwyn Bruton and J. Peter Pham, ‘How to end the stalemate in Somalia’, in Foreign Affairs, 30 September 2011, available at: http://www.foreignaffairs.com/articles/68315/bronwyn-bruton-and-j-peter-pham/how-to-end-the-stalemate-in-somalia (last visited 11 May 2012).

122 Ibid., pp. 363–365.

123 P. Krähenbühl, above note 62.