Military involvement in law enforcement

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. The conduct of contemporary military operations takes place in a highly complex and contested terrain of legal and social norms. Whether a military force is engaged in conventional armed conflict, counter-insurgency, anti-terrorism, peacekeeping/ enforcement, stability operations, or law enforcement, there is a convergence of a dense mixture of law, doctrine and policy that guides military decision-making. Within this highly pluralist environment, the synchronization of law and policy on the one hand, and of formalism and social effect on the other, needs to be constantly reconciled. Military involvement in law enforcement (broadly defined) has become a key feature of operational planning and execution. Law enforcement as referred to in this article relates to the ‘broad range of activities to protect the Volume 92 Number 878 June 2010 * The views expressed in this article are those of the author and do not necessarily reflect the position of the Australian Government or the Australian Defence Force. doi:10.1017/S1816383110000329 453 civilian populace, provide interim policing and crowd control, and secure critical infrastructure’. It is to be contrasted with conventional war-fighting and often takes place in a context of overlapping legal frameworks. The application of force in law-enforcement-type activities is sometimes determined by peacetime criminal law regimes, sometimes by elements of the law of armed conflict, and sometimes by both. The consequences of non-compliance with the relevant rule, norm, or standard within this highly calibrated and synergetic legal framework can be devastating. The impacts can be measured in terms of personal liability and mission accomplishment goals, as well as broader socio-political registers of legitimacy. The purpose of this article is to examine the legal frameworks applicable to military involvement in law-enforcement-type activities. While law enforcement has not been a traditional core skill of military training, military forces on deployment are nonetheless undertaking such duties. The basic objective of such involvement is to preserve or restore security, invariably in post-conflict societies. My analysis will focus on two important types of operation in which security/ law enforcement activities are prominent, namely United Nations (UN) peace operations and unilateral/multilateral stabilization or counter-insurgency operations. In each of these contexts, highly nuanced and regulated legal regimes dictate permissible levels of force. They also represent different sides of the same coin. In UN peace operations there is invariably an institutional policy directive regarding the limited use of force, notwithstanding that the factual context for such deployments and the threats encountered would probably support the application of the law of armed conflict. Accordingly, UN peacekeeping forces usually navigate a highly circumscribed legal regime when performing their mission. Conversely, in stabilization/counter-insurgency operations the law of armed conflict does normally apply, but recent military doctrine stipulates that the use of force is to take place in a highly surgical and sparing manner. Concomitantly, the law of armed conflict is interpreted in a highly contextualized manner. It has been recognized that restoring security has become a critical factor for ensuring broader social and political development within societies emerging from conflict. At the same time, the social effect of legal interpretation with respect to the application of force has been better understood and integrated into operational doctrine. The success of the US ‘surge’ in Iraq in 2007 was partially attributable to a radical new approach to understanding the socio-political impacts of force under the law. This, in turn, has influenced legal interpretative methods. Such changes mark a profound shift in perspective, yet echo the interpretative approach of the US legal-realist school of the early to mid-twentieth century. In the first part of this article, I will examine the characteristics of UN peace operations as well as stabilization/counter-insurgency operations and outline 1 See in general David Kennedy, ‘One, two, three, many legal orders: legal pluralism and the cosmopolitan dream’, in New York University Review of Law and Social Change, Vol. 31, 2006–2007, p. 642. 2 The US Army Stability Operations Field Manual 3–07 (The Stability Ops Manual), University of Michigan Press, Ann Arbor, 2009, para. 3-22. 3 David Kennedy, Of War and Law, Princeton University Press, Princeton, 2006, p. 159. 454 D. Stephens – Military involvement in law enforcement