Should the best offense ever be a good defense? The public authority to use force in military operations: recalibrating the use of force rules in the standing rules of engagement.

Author:Corn, Gary P.
Position:III. The Public Authority to Use Force in Military Operations B. The Public Authority Doctrine through VI. Conclusion, with footnotes, p. 27-57
 
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  1. The Public Authority Doctrine

    The post-Westphalian consolidation in the nation-state of "the monopoly of violence for the maintenance of external and internal [security and] order" presupposes the necessity of the state to delegate use-of-force authority to its agents. (112) Both domestic and international law endorse this principle, subject to distinct limitations defined in law. In recognition of the need for individual actors to employ coercive, and at times lethal, force on behalf of the state, the law establishes a logical quid pro quo underwriting certain conduct that would otherwise be deemed as criminal. (113) This construct finds expression in the common law "public authority" defense to criminal liability, a doctrine well established in domestic U.S. law and reflected in general principles of international law. Considered in conjunction with the normative frameworks that regulate the sovereign's monopoly on the use of coercive force, the public authority defense offers a useful device for analyzing the proper scope of use-of-force authorities that may be delegated through ROE.

    The public authority justification, a sub-norm of the general system of justifications in criminal law, (114) holds that acts committed by a public official "which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority." (115) "Indeed, without justification defenses, state officials would be quite unable to perform their most basic functions." (116) Variants of the public authority justification are contained in the codes of nearly every state in the United States, (117) and it is implicitly recognized in the universally accepted LOAC principle of combatant immunity, IHRL instruments, general principles of international law, (118) and the Rome Statute. (119) The general construct of the public authority justification is stated as follows:

    [1] the actor has a public authority, and ... there arises the need for action protecting or furthering the particular interest at stake; and [2] consistent with his authority, the actor engages in conduct ... when and to the extent necessary to protect or further the interests at stake ... that is reasonable in relation to the gravity of the harm threatened or the importance of the interest to be furthered. (120) Stated differently, to invoke the public authority justification, a public official must demonstrate that he or she had the lawful authority to protect or advance a legitimate state interest, conditions arose that triggered his or her authority, and that the actions taken to protect or further the interest were both necessary and proportionate. (121) The harm caused by evoking one's public authority must be reasonable in relation to the societal interests at stake. (122)

    The clearest manifestation of the public authority justification as it pertains to the military involves "the killing of an enemy as an act of war and within the rules of war." (123) The Model Penal Code's proposed formulation of the defense considers conduct justifiable when it is either required or authorized by, inter alia, "the law governing the armed services or the lawful conduct of war...." (124) This aspect of the public authority justification obviously mirrors the CIL rule of combatant privilege, which accords immunity from prosecution to lawful combatants for acts of violence committed in accordance with the LOAC. (125) Thus, according to the United States' Manual for Courts-Martial, "killing an enemy combatant in battle is justified" and so not unlawful. (126) So long as the state actor, in this case a combatant, uses force consistent with the lex specialis targeting rules of the LOAC, his or her actions will be deemed necessary and proportionate as a matter of law.

    Logically, however, the immunity of the combatant privilege and its analog in the public authority justification are not absolute. The specific rules of the LOAC define the outer limits of the use-of-force authority that may be exercised by the state's agents in pursuit of the state's interests through armed hostilities. Unless otherwise justified, intentional killings conducted outside those limits exceed the scope of one's public authority and constitute the war crime of murder. (127) This was exactly the issue presented in the Behenna case. (128)

    The public authority justification is not limited, however, to acts of violence committed in the course of hostilities against legitimate military targets. It extends also to conduct required or authorized by "the law governing the armed services" more broadly, as well as to "the law defining the duties or functions of a public officer ... in the performance of his duties." (129) Thus, for example, "the use of force by a law enforcement officer when reasonably necessary in the proper execution of a lawful apprehension is justified because the duty to apprehend is imposed by lawful authority." (130) Just as the LOAC limits the scope of the public authority justification as it pertains to uses of force in armed conflict, the same symmetry pertains to domestic and IHRL limitations on the force public officials may use to further the state's interests outside of or unrelated to hostilities.

    Like all justification defenses, public authority justification arises only upon the presence of a triggering condition and is subject to the principles of necessity and proportionality. (131) That is, the justification is only triggered "when circumstances arise that evoke the use of the actor's delegated authority." (132) At that point, the public actor may act, but only to the extent necessary to protect or further the state's interest at stake, and only with a degree of force proportionate to the harm to be prevented or the interest to be advanced. (133) Stated differently, the force used must not be excessive under the circumstances. (134)

    Unlike the justification of self-defense, the public authority justification need not necessarily be triggered by an actual threat of unlawful violence. (135) "The actor need only be protecting or furthering a legally recognized interest." (136) The authority of police to affect an arrest or the targeting of an enemy combatant while in his or her sleep are two examples. (137) But the defense is available only if the government agent is performing a legal duty at the time of the alleged offense that permits his or her action in relation to the triggering conduct. (138)

    Where that legal duty involves using force to protect against unlawful uses of violence, there is undoubtedly an overlap with the standard justification of self-defense, but the two do not operate equally. Unlike private citizens exercising a personal right, public officials stand in a unique relationship to the public, are held to a higher standard, and may not exercise their legal powers arbitrarily. (139) Further, as the sovereign defines the duty with relation to the specific interest to be protected or advanced, it is free to impose a threat trigger and conditions on the authority of its agents to respond. (140) Indeed, the Constitution is understood as requiring the sovereign to do just that with respect to U.S. citizens. The arbitrary killing standard of IHRL may compel the sovereign in a similar fashion.

    ROE form part of the body of laws governing the armed services and serve as the primary mechanism by which the state regulates how and under what circumstances its agents use force in pursuit of the state's interests. As such, they serve as a primary means to convey public authority to servicemembers to use force under defined circumstances. To be valid, however, they can convey no greater authority than the sovereign itself can exercise, and must hew to the law applicable to any given situation. (141) A general review of the bodies of law relevant to scoping the use of force during military operations follows.

    1. The Regulation of Force During Military Operations

    Sergeant Alvin C. York's Medal of Honor-winning actions on October 8, 1918, during the Meuse-Argonne offensive, are the stuff of legend. After he and seventeen other soldiers infiltrated behind enemy lines, they came under intense fire from a German machine gun nest that cut down nine of the men, including a superior officer, leaving York in charge of the element. (142) Sergeant York immediately counterattacked into the hasty ambush, returning fire so effectively that he killed twenty German soldiers and eventually captured over one hundred more in an action that proved decisive to the operational success of the United States' broader offensive. (143)

    Ironically, Sergeant York was staunchly opposed to killing. (144) He was a firm believer in the ancient dictate against homicide that underlies the prohibition against murder in the moral and legal codes of nearly every society in the world. Murder, however, is not synonymous with homicide. Homicide is only criminally sanctioned as murder when it is unlawful. Stated differently, under certain limited circumstances strictly defined in law, the killing of another human being is legally permissible. Hence Sergeant York was properly honored as a hero and not condemned as a murderer.

    What was it, then, that gave Sergeant York the legal authority to intentionally take the life of those twenty German soldiers? In contemporary parlance, the most immediate answer is that Sergeant York was acting in his capacity as a privileged belligerent within the context of an international armed conflict and therefore had the legal sanction by the rules and customs of warfare to target enemy soldiers with lethal force. Sergeant York's authority, however, derived not from his standing as an individual human being, but rather from his legally defined status as a particular type of agent of the state--a combatant. As discussed in...

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