Bringing in the armed forces to face an internal security crisis in democratic countries implies many challenges. Soldiers, who are traditionally trained to fight wars and to engage in conventional combat against another country's armed forces, are called on to fight among fellow citizens against armed groups that do not resemble a regular army. Moreover, the armed forces, which are traditionally conceived of as a proactive force whose aim is to defeat an external enemy in a war, are called upon to perform as both a proactive and a preventive force whose aim is to restore security and the legitimate authority of the state. As the epigraph implies, when dealing with an internal security crisis how the armed forces prevail is as important as the fact that they do prevail. In a nutshell, the armed forces have to operate effectively in their internal security missions, but they also have to perform within the bounds of the democratic rule of law.

But it is not evident prima facie what the appropriate law governing these uncommon situations is and how balancing the clashing aims of addressing the threat to security while restoring legitimacy and the rule of law should be achieved. This comes down to how the use of force is regulated and who is in charge of doing so. Several questions arise: When the civilian government calls the armed forces in to face an internal security challenge, is the regular criminal law the appropriate framework for regulating the consequences of how lethal force is used? Alternatively, is the traditional law of war – the International Humanitarian Law (IHL) – a more appropriate framework? What are the legal consequences of using each legal framework – for the soldiers, the government, the regular citizens, the victims, and the armed groups challenging the forces of the state?

Modern states need a corps of armed forces strong enough to provide security against external threats as well as to guarantee internal peace. But strong armies have also proven to be a threat to the regime and, specifically, to democratic stability, weakening the state and harming thousands of people. Powerful armies subordinated to democratic civilian governments are the puzzling exception where people with guns obey people without them (Przeworski 2011, 180). But how to create armed forces bounded by the democratic rule of law without jeopardizing its sprit de corps or its efficacy? In 1780 Thomas Jefferson said, “The freest governments in the world have their army under absolute government. Republican form and principles are not to be introduced into government of an army.” Absolutism is no longer an ideal model for organizing armed forces. True, they require strict discipline and a corporatist identity to work efficiently. But a history of military abuses, both within the armed forces as well as carried out by them, warns against prioritizing efficiency at the expense of accountability. Still the conundrum remains: How to obtain simultaneously the seemingly incompatible goals of having strong and efficacious militaries subjected to the rule of law?

Civilian governments and their armed forces clash over this quandary (cf. Barany 2012). When the dilemma is not dealt with successfully, an extreme outcome may be a coup d’état. Even if the generals seize power in the name of the rule of law “taking upon themselves the moral duty of deposing the illegitimate government,” as the Chilean generals led by Augusto Pinochet declared in justifying the 1973 military takeover, coups kill the democratic rule of law. The balance of authoritarian forces may produce something that resembles the engine force of constitutionalism (Barros 2002), or the courts may attempt to square the circle shedding some legality upon the usurpers (Mahmud 1994), but the democratic rule of law simply does not mix well with military regimes. The recent examples of the brief democratic interlude in Egypt interrupted by a military coup in 2013, or the coup d’état in Thailand in 2014, confirm that democracy dies the day of the coup, despite the statements and press releases of the generals.