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Military involvement in law enforcement

Published online by Cambridge University Press:  19 July 2010

Dale Stephens
Dale Stephens
Affiliation:
Captain, Royal Australian Navy
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Abstract

Law enforcement is not a task usually undertaken by military forces, at least within domestic legal contexts. Conversely, maintaining or restoring security within dysfunctional or ‘post-conflict’ areas of operation is a role commonly undertaken by them. Within these latter operations, the skill sets and highly calibrated application of force that are commonly associated with police forces in their law enforcement role are in fact manifested in a decisively military context. This article reviews the experiences and legal frameworks associated with military participation in two separate types of mission, namely UN-sponsored peace operations and unilateral/multilateral stabilization and counter-insurgency operations. It argues that these contexts have demanded a revised interpretative approach to the applicable law, one that is much more sensitive to social and political effect.

Type
Urban violence
Information
International Review of the Red Cross , Volume 92 , Issue 878: Urban violence , June 2010 , pp. 453 - 468
Copyright
Copyright © International Committee of the Red Cross 2010

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References

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4 Act of 18 June 1878 (codified in 18 US Code § 1385 (1994)): ‘Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both’.

5 The Commander's Handbook on the Law of Naval Operations, US Navy, NWP 1–14M, July 2007, para. 3.11.3.1.

6 Another standard, though exceptional, occasion when the military are used in a law enforcement role is in relief and reconstruction efforts after natural disasters. See Carlin, Evan, ‘Australian Defence Force experience with non-government organizations in humanitarian assistance and disaster relief operations’, in Carsten, Michael (ed.), global Legal Challenges: Command of the Commons, Strategic Communications and Natural Disasters, US Naval War College International Law Studies Series, Vol. 83, 2007, p. 267Google Scholar.

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12 UNSC Resolution 1272 (1999), 25 October 1999.

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18 Ibid., para. 1–9: ‘In the decade after the fall of the Berlin Wall, the Army led or participated in more than 15 stability operations’.

19 US Department of Defense (DoD) Directive 3000.05 of 28 November 2005, at para. 4.2, expressly states DoD policy regarding stability operations as follows: ‘Stability operations are conducted to help establish order that advances US interests and values. The immediate goal often is to provide the local populace with security, restore essential services, and meet humanitarian needs. The long-term goal is to help develop indigenous capacity for securing essential services, a viable market economy, rule of law, democratic institutions, and a robust civil society’.

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22 Taken from Dick Pregent, Rule of Law Capacity Building in Iraq, forthcoming in Vol. 86 of the US Naval War College International Law Studies Series.

23 See generally Lon L. Fuller, The Morality of the Law, revised edition, Yale University Press, 1969.

24 D. Pregent, above note 22.

25 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305 – S/2000/809, para. 48.

26 Hitoshi Nasu, International Law on Peacekeeping: A Study of Article 40 of the UN Charter, Martinus Nijhoff Publishers, Leiden, 2009, pp. 17–27.

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28 Ibid., p. 15.

29 Ibid., pp. 184–188.

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31 Ibid., Section 1.1: ‘The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence’.

32 See for example Mohamed Ali et al. v. Public Prosecutor (1968), [1969] AC 430.

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34 See European Court of Human Rights, McCann and others v. The United Kingdom, Series A, No. 324, Application 18984/91 (1995), in which a majority of the European Court of Human Rights determined that there had been a breach of Article 2-2 of the European Convention on Human Rights by the failure of British authorities to arrest suspected IRA terrorists before the point in time where the application of lethal force became inevitable.

35 The principle of proportionality is outlined in Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, in which Article 51(5)(b), under the heading ‘Protection of the civilian population’, prohibits indiscriminate attacks as, inter alia, ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.

36 See generally Dale Stephens, The Use of Force in Peacekeeping Operations: The East Timor Experience, Asia Pacific Centre for Military Law, Melbourne, 2005.

37 Protocol I, above note 35, Art. 51(3); Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Art. 13(3); Article 3 common to the four Geneva Conventions of 12 August 1949.

38 D. Pregent, above note 22.

39 See generally David Kaye, ‘Complexity in the law of war’, in Russell A. Miller and Rebecca M. Bratspies (eds), Progress in International Law, Martinus Nijhoff Publishers/Brill Academic, Leiden, 2008, p. 681; Berman, Nathaniel, ‘Privileging combat? Contemporary conflict and the legal construction of war’, in Columbia Journal of Transnational Law, Vol. 43, No. 1, 2004–2005Google Scholar, in which the author contends that the law of armed conflict is a discourse of construction, contestation, and strategic instrumentalization; Jochnick, Chris and Normand, Roger, ‘The legitimation of violence: a critical analysis of the Gulf War’, in Harvard International Law Journal, Vol. 35, No. 2, 1994, p. 387Google Scholar.

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44 For example, when ratifying Additional Protocol I, New Zealand declared: ‘In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57 … the term “military advantage” involves a variety of considerations, including the security of attacking forces’. A similar declaration was made by Australia. While not a party to Additional Protocol I, the United States has included in The Commander's Handbook on the Law of Naval Operations the following commentary: ‘Military advantage may involve a variety of considerations, including the security of the attacking Force’.

45 The U.S Army/Marine Corps Counterinsurgency Field Manual 3-24/3-33.5 (COIN Manual), University of Chicago Press, Chicago, 2007, p. xxv.

46 Ibid., para. 1–149.

47 Ibid., para. 1–153.

48 Ibid., para. 1–150.

49 Ibid., para 1–151.

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52 Multi-National Force–Iraq (MNF-I) Guidelines as contained in Thomas Ricks, The Gamble, Penguin Press, New York, 2009, Appendix D, p. 369, provides: ‘We cannot kill our way out of this endeavor. We and our Iraqi partners must identify and separate the “reconcilable” from the “irreconcilables” through engagement, population control measures, information operations and political activities. We must strive to make reconcilables a part of the solution, even as we identify, pursue, and kill, capture or drive out the irreconcilables’.

53 D. Kilcullen, above note 21, p. 38.

54 COIN Manual, above note 45, para. 7–32.

55 Ibid., para. 7–37.

56 Ibid., p. xxv.

57 NATO/ISAF Tactical Directive, 6 July 2009, available at http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf (last visited 10 May 2010).

58 D. Kilcullen, above note 21, pp. 128–154.

59 T. Ricks, above note 52, pp. 50–51.

60 Ibid., pp. 200–227.

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