Occupation

Volume 94 Number 885 Spring 2012very notion of the universality of human rights’. 50 The scope of such customary lawis reflected in the Restatement of the Law: The Foreign Relations Law of the UnitedStates, which indicates that it includes protection from murder, torture, or othercruel, inhuman, or degrading treatment or punishment or prolonged arbitrarydetention. 51 Of particular note in respect of law enforcement, the Restatement ofForeign Relations Law specifically links human rights norms to policing. It isindicated that, while murder is stated to be a violation of international law, thiswould not be the case where it is necessary to take life in exigent circumstances, ‘forexample by police officials in line of duty in defense of themselves or of otherinnocent persons, or to prevent serious crime’. 52 Therefore, the inhabitant’s rights tolife, and other rights, are protected under both IHL and human rights law.It is in the context of maintaining public order and safety that the issueoften arises of how the two governing frameworks of humanitarian and humanrights law interact with each other. Since the occupation of territory does not endthe armed conflict, it is inevitable, as Richard Baxter noted in 1950, ‘that inhabitantsof an occupied area will chafe under enemy rule ...and that they will in numerousinstances, acting singly or in concert, commit acts inconsistent with the security ofthe occupying forces’. 53 This reality is reflected in the reference to ‘organizedresistance movements’ in the Third Geneva Convention. 54 It is also relevant to theTherefore, it is the CIL [customary international law] status of certain human rights that renders respectfor them a legal obligation on the part of U.S. forces conducting operations outside the United States, andnot the fact that they may be reflected in treaties ratified by the United States. Practitioners mustnevertheless look to specific treaties, and to any subsequent executing legislation, to determine if thisgeneral rule is inapplicable in a certain circumstance’. See also N. Lubell, above note 48, p. 235; NoamLubell, ‘Challenges in applying human rights law to armed conflict’,inInternational Review of Red Cross,Vol. 87, No. 860, December 2005, p. 741; Y. Dinstein, above note 4, p. 71. As Dinstein notes, while theCovenant and the European Convention are limited in their application to Contracting parties, ‘[c]ustomary human rights are conferred on human beings wherever they are’. See also Nuhanovic v. TheState of the Netherlands, Court of Appeal in The Hague, case number 200.020.174/01, 5 July 2011, p. 17,para. 6.3, available at: http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388 (last visited 4 November2011), in which the Court stated ‘[a]dditionally, the Court will test the alleged conduct against the legalprinciples contained in articles 2 and 3 ECHR and articles 6 and 7 ICCPR (the right to life and theprohibition of inhuman treatment respectively), because these principles, which belong to the mostfundamental legal principles of civilized nations, need to be considered as rules of customary internationallaw that have universal validity and by which the State is bound’; Mustafic-Mujic et al. v. The State of theNetherlands, Court of Appeal in The Hague, case number 200.020.173/01, 5 July 2011, p. 18, para. 6.3,available at: http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386 (last visited February 2012).50 David Kretzmer, ‘Targeted killing of suspected terrorists: extra-judicial executions or legitimate means ofself-defence?’, inEuropean Journal of International Law, Vol. 16, No. 2, 2005, p. 184.51 Restatement of the Law: The Foreign Relations Law of the United States, Vol. 2, American Law InstitutePublishers, St. Paul, MN, 1987, pp. 161–175 (hereafter Restatement of Foreign Relations Law).52 Ibid, pp. 163–164, para. f.53 Richard R. Baxter, ‘The duty of obedience to the belligerent occupant’, in British Year Book ofInternational Law, Vol. 27, 1950, p. 235.54 GC III, Art. 4(A)(2). Resistance during occupation is distinguished from participation in fighting aninvading force. Hague Regulations, Art. 2 and GC III, Art. 4(A)(6) provide lawful belligerent status to whathas been termed the levée en masse and with it the right to be treated as a prisoner of war upon capture.The levée en masse is described as inhabitants of a non-occupied territory who, upon the approach of anenemy, spontaneously take up arms to resist invasion without having had time to form themselves intoregular armed units. They must carry arms openly and respect the laws and customs of war. What isunclear is the degree of organization that the inhabitants must have in order to be considered lawfulparticipants in armed conflict, although historically it was considered not to include individual275