Debates over the permissible authority to use force against emerging non-state threats are consistently dictated by a binary legal paradigm: either armed conflict is recognized permitting status based targeting or law enforcement conduct based use of force norms must be respected. This paradigm has driven an expansion of the threats characterized by states as falling within the scope of non-international armed conflicts, a trend that has produced substantial controversy. At the same time, in many states organized criminal groups are creating unprecedented challenges to government authority by utilizing widespread and indiscriminate violence to sow the seeds of chaos and demonstrate their impunity. The nature of these threats often overwhelms the capacity of normal law enforcement response authority, and it necessitates use of regular armed forces in an effort to restore public order and reassert the government warrant. When these forces are employed, uncertainty as to the legal nature of such operations degrades clarity of tactical engagement authority.
One solution to this problem is to embrace an armed conflict characterization for such operations. This approach will certainly provide a legal foundation for the aggressive use of combat power against these threats. However, it may also produce a degree of strategic and operational over breadth. However, because expanding the scope of permissible tactical engagement authority within a pure human rights legal framework is simply not feasible, this must be recognized as the only viable start point to address these emerging threats. To offset the risk of authority over breadth, however, this invocation of law of armed conflict authority must also be accompanied by limitations on exercising the full scope of this authority. This would achieve two important objectives. First, it would align use of force authority with the nature of the tactical missions these forces are called upon to execute. Second, it would limit the impact of this expanded authority to only those tactical missions where high level national authorities assess true necessity for such expansion while at the same time retain other aspects of a human rights dominated response. Such an approach will undoubtedly spark criticism from both human rights and armed conflict proponents. The former will likely object to treating criminal threats as belligerent operatives; the latter to limiting use of LOAC authority. However, before such adjustment to military use of force authority is rejected, opponents should seriously consider the alternative that this rejection may press states to adopt: a continuation of the trend to essentially pretend they are responding to a pure law enforcement threat, while at the same time employing force in a manner that can only be permissible within the context of armed conflict. In short, opponents of such a proposal might consider ‘being careful what they ask for, because they just might get it.’
- armed conflict,
- law of war,
- law of armed conflict,
- criminal gangs,
- organized crime
Available at: http://works.bepress.com/geoffrey_corn/11/