Domestic Deployment of the Armed Forces

Military Powers, Law and Human Rights

Michael Head, Scott Mann

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138267626
• eBook ISBN: 9781317148500
• Topic: Law
• Subtopic: International Law
• Index: Law

Until recently, internal use of the armed forces has been generally regarded by the public, as well as academic commentators, as conduct to be expected of a military or autocratic regime, not a democratic government. There is however growing concern that the 'war on terror' has been used to condition public opinion to accept the internal deployment of the armed forces, including for broader industrial and political purposes. This book examines the national and international law, human rights and civil liberties issues involved in governments calling out troops to deal with civil unrest or terrorism. As the introduction of military call-out legislation has become an emerging global trend in the opening years of the 21st century, there is considerable and growing interest in the constitutional and related problems surrounding the deployment of military forces for domestic purposes. Examining the changes underway in six comparable countries, the United States, Canada, Britain, Germany, Japan and Australia, this book provides a review and analysis of this trend, including its implications for legal and political rights.

Chapter 1
An International Trend

Mobilising the military for internal use is normally associated with dictatorial regimes, not democratic ones. In the twentieth century, military methods of rule were most commonly associated with names such as Mussolini, Hitler, Franco, Suharto and Pinochet. However, the introduction of enhanced powers to call out the armed forces to deal with domestic disturbances has become an emerging global trend in the opening years of the twenty-first century. There is a clear need for a review and analysis of this trend, including its implications for legal and political rights.

Calling out the armed forces and placing troops on the streets to deal with civil unrest is one of the most drastic and potentially life-threatening actions that a government or other authorities can take against members of society. Such recourse to the ultimate violent power of the state is likely to be a symptom of intense social antagonisms.

Unfortunately, modern history offers many examples of severe repression by governments that have mobilised the military against the population. One need only recall the extermination of up to one million people in Indonesia in 1965–66 following the army coup led by General Suharto, the killing of thousands in Chile in 1972–73 after the coup of General Pinochet, and the murder of thousands by the Chinese regime after the Tiananmen Square uprising of 1989.

It has commonly been assumed that events of this horrific character cannot occur in Western-style democracies. However, the very fact that new measures have been introduced to facilitate the domestic mobilisation of troops suggests that official preparations are being made for possible clashes involving civilians and soldiers.

This book examines the national and international law, human rights and civil liberties issues involved in Western governments calling out troops for domestic purposes. It probes the changes underway in seven comparable countries: the United States, Canada, Britain, Germany, Italy, Japan and Australia. These countries, which could be regarded as advanced industrial and capitalist states, have been selected for several reasons. Four of them derive their political, constitutional and legal doctrines from the English heritage, which is often regarded as an exemplar of democratic traditions, having emerged out of the overturn of the previously autocratic foundations of the British monarchy. These countries are commonly held up as democratic models, contrasted with dictatorial or totalitarian regimes. The other three countries chosen have post-Second World War constitutional arrangements that enshrine measures intended to provide safeguards against the return of the kinds of military-backed fascist or imperial regimes that took hold of these countries before the war.

No attempt has been made in this volume to examine wider global trends, including the resort to outright or thinly-veiled military dictatorships in an array of former colonial or semi-colonial states, such as Pakistan, Burma, Fiji and Mauritania, and the prominent roles played by the armed forces in China, Russia and Vietnam. Instead, the focus is on asking how and to what degree contemporary advanced democracies differ from other states when it comes to having the power to call out troops to suppress internal unrest.

A number of other questions arise. What parallels and differences can be detected in the developments in the two groups of selected countries since the turn of the century? Can an overall pattern be identified in either group or indeed between all the countries? If so, what are the causes?

There is reason for concern that in both groups of countries the ‘war on terror’ has been conditioning public opinion to accept the internal deployment of the armed forces, including for broader industrial and political purposes. The turn to militarism abroad, seen in the US-led invasions of Afghanistan and Iraq, has been accompanied by a tendency toward the militarisation of domestic life as well.

In the United States, the Bush administration of 2001–2009 initiated reviews of the Posse Comitatus Act, which restricts domestic use of the military. Likewise, a Defence Policy review was undertaken in Canada to make domestic security a core business of the Canadian Forces. The British Civil Contingencies Act 2004 empowered the government to deploy defence forces in broadly-defined ‘emergencies’. In Australia, the Sydney Olympic Games in 2000 provided the initial rationale for legislation giving the federal government explicit and expanded powers to call out troops to deal with ‘domestic violence’.

Over the same period, the German government has sought legal means to overcome the post-war constitutional restrictions on internal military operations, while the Japanese government has foreshadowed moves to remove the pacifist clause of Japan’s post-war constitution. In Italy, the government deployed soldiers on the streets in 2008, purportedly to fight crime and deal with illegal immigrants. These developments in these three countries are of particular significance because of their pre-Second World War experiences under fascist or military dictatorships.

Little academic attention has been paid to this trend and no existing book examines it on an international scale. The issues raised were last canvassed, in relation to the United States and the UK, more than two decades ago in Rowe and Whelan’s Military Intervention in Democratic Societies (Rowe and Whelan 1985).

This new volume provides an outline of the many and various constitutional and legal issues involved in calling out the armed forces, for example: (a) blurring the line between police and military functions; (b) giving soldiers ‘shoot to kill’ and other military-style powers on domestic soil; (c) challenging the separation of powers between the executive, legislature and judiciary; (d) overcoming federal— state—local divisions of responsibility; (e) affording legal immunities and ‘lawful orders’ defences to military personnel; and (f) overcoming the post-Second World War ‘pacifist’ clauses.

We also examine the ‘war on terror’ declared by the US government and its allies since 2001, which has provided the primary official rationale for these provisions. That is, in the main, these changes have been brought forward on the pretext of protecting the public from terrorism or political violence. But is that pretext credible? What exactly is the ‘war on terror’ and how has it been defined? Are its measures, including the military powers, temporary or do they have long-term implications?

Military call-out powers have been expanded in addition to substantial extensions in the size, sophistication and weaponry of police, para-military and intelligence agencies. These extensions began well before 2001, but have also accelerated since then. Thus, while a creeping militarisation of society and law enforcement has taken place, this process has been accompanied by the boosting and arming of the civilian state apparatus. Although the focus of this book is not on those parallel police and intelligence developments, none of our analysis should be read as an argument for supporting the continuing bolstering of the civilian arm of the state as an alternative to military intervention.

On the contrary, the simultaneous strengthening of the military and civilian ‘domestic security’ forces deepens the basic issues raised here. Why are all the state powers being intensified? Why are increasingly police-state measures being adopted, ultimately backed by the military option? It seems that despite the proliferation of heavily-armed civilian policing agencies, backed by extensive surveillance forces and technologies, the powers-that-be are anticipating civil disorders or unrest that these agencies cannot control without calling in the armed forces. This dual expansion of the armed force available to the political establishment makes all the more necessary the task of probing the underlying politico-legal implications and socio-economic pressures.

The significance of these issues can be fully assessed only by reviewing the historical record, including the struggles that established the principles of military non-intervention in domestic affairs and civilian control over the armed forces. Among the historical experiences examined in this book are:

• The origins of the traditional taboo on domestic deployment, arguably dating back to the Magna Carta of 1215 and the seventeenth-century struggles against the absolutist monarchy in Britain.

• The early British experiences and the later troubles in Northern Ireland: from the Bristol and Featherstone riots to Northern Ireland, where between 1969 and 1993, the military killed 297 people, often in disputed circumstances.

• The aftermath of the American Revolution and Civil War: the roots of the ‘traditional and strong resistance of Americans to any military intrusion into civilian affairs’ (Laird v Tatum, 408 U.S. 1, 15).

• The lessons of pre-war and post-war Germany and Japan: the internal use of military forces by the Nazi and Japanese imperial regimes; the adoption of post-war constitutional protections.

• Australia’s evolution from a military colony to civil society, including the use of martial law and other military powers to suppress convicts, Aborigines and workers, and the deployment of the military for industrial and political purposes in the twentieth century.

Having examined these historical experiences we review the developments in each country in more detail and conclude by canvassing the underlying political and legal issues. What are the legal and democratic implications? How can the use of military powers be subjected to public scrutiny and legal restraints? What lies behind the global trend? What role is played by militarism, counter-terrorism, social polarisation and political instability? What are the reasons for concern, in terms of human rights, civil liberties, rule of law, civilian control of society?

Overview: The International Trend

Italy

Perhaps the most striking development in the early years of the twenty-first century was the 2008 decision of the Italian government to deploy 3,000 troops domestically, ostensibly to crackdown on illegal immigrants and make Italy’s cities safer. Following a six-month trial, the government foreshadowed a second phase involving up to 30,000 soldiers.

In mid-2008, the government headed by Prime Minister Silvio Berlusconi proclaimed a state of emergency due to the inflow of refugees by boat across the Mediterranean Sea, and the Defence Minister signed a decree to permit the use of 3,000 troops for domestic purposes. One thousand troops were to be deployed at refugee internment camps, officially called ‘identification and classification centres’, and another 1,000 at sensitive public places (train stations, embassies, St Peter’s Cathedral, and so on), with the remainder assigned to patrol streets in Rome and other major cities, alongside police officers. Armed troops, some in body armour and with automatic weapons, appeared on the streets. Some of the troops had previously served in Afghanistan, Iraq or Lebanon (Michaels 2008; Dinmore 2008).

There was widespread scepticism, both internationally and domestically, in the government’s motives, given that crime rates had fallen in Italy and the country already had 230,000 police and carabinieri. Media commentators accused the government of seeking to shift focus away from the country’s sagging economy. The military deployment was not unprecedented – some 20,000 troops were sent to Sicily in 1992 to combat the Mafia, and soldiers were often seen in Italian cities during the Red Brigades’ attacks in the 1970s and 1980s. Nevertheless, the emergency measures were reminiscent of Mussolini’s pre-Second World War fascist dictatorship (Economist 2008; Arens 2008).

Whereas in the 1930s Jews became scapegoats for fascists, there were signs that gypsies and other immigrants were being demonised as economic and social conditions deteriorated in 2008 and 2009. In early 2009, amid a media campaign against an alleged crime wave involving an influx of Eastern European gypsies, Prime Minister Berlusconi said 30,000 troops would be put on the streets to fight crime. There were also allegations that military units had been deployed to make arrests and break up illegally-erected shacks in Rome (Dinmore and Bianchi 2009).

United States

The September 2001 attacks have provided the pretext for significant changes to the military–civil relationship in the United States. Recent years have seen the establishment of the Northern Command – a Pentagon command dedicated solely to domestic security – the staging of internal war game exercises and the deployment of federal troops for major political events, including the 2008 Democratic and Republican national conventions and the 2009 inauguration of President Obama.

In 2006, President George W. Bush signed into law the Department of Defense Authorization Act for Fiscal Year 2007, which substantially eroded the Posse Comitatus Act, a longstanding Congressional prohibition on the use of the military for domestic policing. The 2007 legislation amended the Insurrection Act to permit the President to ‘employ the armed forces … to restore public order and enforce the laws of the United States’ in the event not just of ‘insurrection, domestic violence, unlawful combination or conspiracy’, but also ‘natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition’, where civilian authorities are ‘incapable of maintaining public order’ and such violence ‘opposes or obstructs the execution of the laws of the United States’ (10 U.S.C. § 333). The latter phrase could cover many forms of political dissent or industrial disruption.

Following considerable opposition, the 2007 amendment was repealed by the National Defense Authorization Act for Fiscal Year 2008. However, the repeal was accompanied by measures to upgrade the status of the National Guard Bureau and strengthen the relationship between it and the Northern Command (Leahy 2008). Another measure adopted in 2007, the National Security and Homeland Security Presidential Directive, permits the President to declare an emergency, which would establish extraordinary powers for the president and vice-president, creating a non-constitutional form of government (US NSPD 2007).

The Washington Post reported in 2005 that the Pentagon had developed its first ever war plans for operations within the continental United States, in which terrorist attacks would be used as the justification for imposing martial law on cities, regions or the entire country. A total of 15 potential crisis scenarios were outlined, starting with ‘low-end’, which the report described as ‘relatively modest crowd-control missions’, in which the military would deploy a quick-reaction force of as many as 3,000 troops. The Post said military lawyers had studied the legal implications of such deployments, which risked coming into conflict with the Posse Comitatus Act (Guardian 2005).

Canada

The Canadian government has been undertaking a major campaign to elevate the role and visibility of the Canadian military, both abroad and at home. While sending thousands of troops to bolster the NATO-led occupation of Afghanistan, it has heralded a re-definition of the mission of the Canadian Forces. The 2008 national defence strategy committed Canada to a major expansion of the armed forces and asserted: ‘Canadians rightly expect their military to be there for them in domestic crises’ (Department of National Defence, Canada 2008).

The Defence Policy Statement, A Role of Pride and Influence in the World, issued in 2006, first announced a shift in Canadian policy, which would mean making domestic security the primary focus of the Canadian Forces:

To better protect Canada and Canadians, the Canadian Forces will be reorganized to more effectively and quickly respond to domestic crises, as well as support other Government departments as required. (Department of National Defence, Canada 2006)

Also in 2006, the Canada Command was established to focus on domestic operations, mirroring the US Northern Command, and in 2008, the commanders of the Canada Command and the Northern Command signed a Civil Assistance Plan that allows the military from one nation to support the armed forces of the other during a ‘civil emergency’ (US Northern Command 2008).

Despite Canada’s relatively pacifist image, large-scale Canadian ‘aid to civil power’ operations have occurred four times in the past four decades: the Front de Liberation du Quebec (FLQ) crisis (1963–70), the 1976 Olympic Games, the Oka standoff (1990) and disaster relief in Manitoba (1997) (Maloney 1997).

Britain

2004 saw the adoption of legislation that potentially expands the scope for domestic military intervention, in the name of responding to emergencies. The Civil Contingencies Act 2004 replaced the Emergency Powers and Civil Defence legislation (Walker and Broderick 2006). It empowers ‘Her Majesty’ via an Order in Council to issue sweeping emergency regulations in any event that ‘threatens serious damage to human welfare’ or ‘war or terrorism, which threatens serious damage to the security of the United Kingdom’. These regulations can, inter alia, ‘enable the Defence Council to authorise the deployment of Her Majesty’s armed forces’. The powers can be triggered whenever the governing authorities, namely Her Majesty in Council, are ‘satisfied’ that an emergency has occurred, is occurring or is about to occur. The regulations can even suspend, modify or override any other Act of Parliament, with the sole exception of the Human Rights Act (Walker and Broderick 2006, 63–80, 153–88).

During the debate on the Civil Contingencies Act, the government rejected proposals to clarify by statute the military’s role. The government argued that a case-by-case approach was needed, and that the government was already sufficiently accountable to parliament (Walker and Broderick 2006, 44–5). The end result is that ill-defined and extensive prerogative and common law powers to call out the armed forces continue to exist, augmented by the 2004 legislation.

Australia

In Australia, legislation was introduced in 2000, and extended in 2006, giving federal governments and the chief of the Australian Defence Force (ADF) explicit peacetime powers to call out the troops if ‘domestic violence is occurring or is likely to occur’ that ‘would be likely to affect Commonwealth interests’ or require the protection of a state or territory (Defence Act 1903 (Cth) ss. 51A–51Y).

The turn toward the wider domestic engagement of the ADF began before 11 September 2001 and the ‘war on terror’. The Sydney Olympic Games in 2000 provided the initial rationale for call-out legislation. Both major parties cited the danger of a terrorist incident at the Games to justify the swift passage of the legislation, also without any significant public or parliamentary debate. Six years later, the Melbourne Commonwealth Games became the pretext for the 2006 amendments. No specific terrorist threats were reported to either event and no terrorist acts occurred. Nonetheless, the new powers have remained, without any sunset clauses.

Since the 9/11 terrorist attacks, the declaration of a ‘war on terror’ and the wars in Afghanistan and Iraq, aspects of Australian society have been increasingly militarised. Thousands of soldiers have been mobilised, on alert, for major sporting events such as the Sydney 2000 Olympic Games, the Rugby World Cup 2003 and the Melbourne 2006 Commonwealth Games (Bergin and Smith 2006, 10). Naval vessels have been dispatched to repel asylum seekers, with powers to fire on boats or transport their passengers to remote islands (Head 2002; Laing 2005, 518–20). Frequent anti-terrorism exercises have been conducted in urban environments, involving heavily-armed troops...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Key Terms
• Introduction: Why this Book?
• 1 An International Trend
• 2 The Troubled Historical Record
• 3 United States: Eroding Protections against Military Intervention
• 4 Canada: Making ‘Domestic Security’ a Core Mission
• 5 Britain: ‘Defend the State’
• 6 Germany and Italy: Post-War Restraints under Challenge
• 7 Japan: Undermining the ‘Pacifist’ Clause
• 8 Australia: Legislating Military Powers
• 9 Legal Immunities and Uncertainties
• 10 Wider Legal, Political and Democratic Implications
• Bibliography
• Index