The Military Response to Criminal Violent Extremist Groups: Aligning Use of Force Presumptions with Threat Reality

Abstract

In 1949, the inclusion of common article 3 to the 4 Geneva conventions represented a significant advancement in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of common article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation, and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered, are applicable when a state confronts organized criminal gangs possessing a capability to engage in violence and wreak havoc that rivals if not exceeds that of traditional insurgent threats. Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering common article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the conventions at that time anticipated the nature of organized criminal gangs and the destabilizing effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilization of regular military forces to restore government control in areas where they operate. This results in uses of force and exercise of incapacitation powers that far exceeds normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However it is also the view of the authors, that the risk of over breath of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in unjustified deprivations of life liberty and property.