Legitimate defense and the military rules of engagement ofthe armed forces

• Author: Marin-Atanasie Lazau
• Position: MilitaryJusticeSpecialist Ministry of Defense
• Pages: 34-42

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

LEGITIMATE DEFENSE AND THE MILITARY

RULES OF ENGAGEMENT OFTHE ARMED FORCES

M. –A LĂZĂU

Marin-Atanasie LĂZĂU

MilitaryJusticeSpecialist

Ministry of Defense

Doctoral School of Law, The “Alexandru IoanCuza” Police Academy, Bucharest, Romania

*Correspondence:

E-mail: armyylaw@gmail.com

ABSTRACT

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 madeby 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.

INTRODUCTION.

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

1

, 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”

2

.

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

1

The Criminal Code of 1936, Title VII, Chapter II - Causes that defend from or mitigate liab ility.

2

Article 18 of the Criminal Code, General Provisions (relating to justifiable causes).