Legitimate defense and the military rules of engagement ofthe armed forces

AuthorMarin-Atanasie Lazau
PositionMilitaryJusticeSpecialist Ministry of Defense
AGORA International Journal of JuridicalSciences, http://univagora.ro/jour/index.php/aijjs
ISSN 1843-570X, E-ISSN 2067-7677
No. 2 (2017), pp. 34-42
Marin-Atanasie LĂZĂU
Ministry of Defense
Doctoral School of Law, The Alexandru IoanCuza” Police Academy, Bucharest, Romania
E-mail: armyylaw@gmail.com
In a practical sense, we can say that legitimate defense is at the foundation of any military
action or inaction, it is at the same time the legal basis for any decision made by military
decision-makers. Of no lesser importance are thoseregarding the general public, society as a
whole, given the situation in the current international context, when the right to free
movement is already established, therefore any person may be directly or indirectly
confrontedwith a limit-situation in which, one’s instinct of self-preservationwould require and
result in an attitude of legitimate defense, when one’s own life is endangered, as is the case
more and more often nowadays.
For these reasons, the obligation to ensure public security, order and the safety of citizens
through a solid cooperation in the civilian-military relationship has become a matter of major
general concern, enshrined by the entire legislation applicable to the field.
Given these new features of the concept of legitimate defense, we will try, in this article, by
using the comparison method, in addition to the general opinions expressed by the quoted
authors, by the doctrinarians of the studies carried out, to include in its content elements of
justification of a military nature,for the simple reason that this article is aimed at an audience
segment thatbelongs both to civil society and to the military, with an emphasis on the latter,
who are increasingly confronted with this concept of use of force.
KEYWORDS: legitimate defense, R.O.E., military, criminal, penal.
The concept according to which some causes make the criminal (penal) rule not result in its
sanctioning effect was found in the provisions of the Criminal Code Carol II (of Romania),
and has been adopted by the Romanian author in the doctrinal evolution under the generic
name of causes that remove the incidence of the criminal law.
The terminology used by the lawmaker of 1936 does not count in a criminal offence for
justifiable causes or is a person responsible for the offence in case of the appearance of causes
of irresponsibility
, instead, by Law no. 286/2009 for the implementation of the Criminal
Code, there is a clear delineation between justifiable causes and causes of impunity which are
presented in Title II. Thus, it is stated that “the deed provided by the criminal law does not
constitute a criminal offence, if any of the justifiable causes provided by the law is present
Professor VintilăDongoroz approached these issues in a thorough manner, he divided the
criminals into criminals in fact, i.e. persons who can only be physically blamed of the
offence, and punishable criminals, i.e., persons capable of bearing the criminal sanction. In
order for a person to be criminally liable, to be punishable, a number of positive conditions
must be met, which relate to the presence of guilt, and no negative conditions should
The Criminal Code of 1936, Title VII, Chapter II - Causes that defend from or mitigate liab ility.
Article 18 of the Criminal Code, General Provisions (relating to justifiable causes).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT