Occupation

K. Watkin – Use of force during occupation: law enforcement and conduct of hostilitiesconcept of ‘armed combatants’ in Article 44(3) of Additional Protocol I, where thereare special rules regarding the retention of combatant status ‘in situations of armedconflict where, owing to the nature of hostilities, an armed combatant cannot sodistinguish himself’. 55 A number of states have limited the claim for combatantstatus in those circumstances to occupied territory and armed conflicts involvingnational liberation. 56 Further, the Fourth Geneva Convention provides for theadministrative detention of civilians in internment and assigned residence 57 and fortaking penal action against persons who commit offences intended to harm theOccupying Power. 58At the same time the maintenance of public order requires that, as inany society, the population be policed. 59 Unfortunately, neither the HagueRegulations, nor the Geneva Conventions, nor Additional Protocol I refer directlyto policing, although such activity is an inherent part of the detention, internment,and prosecution of criminals or security detainees authorized by humanitarianlaw. 60 Furthermore, the treaty law does not specifically outline how policinginteracts with the conduct of hostilities against those participating in the ongoingarmed conflict. However, prior to looking at how policing and military operationsinteract it is first necessary to gain an appreciation of the complex security challengethat can be presented during occupation. It is to that issue that the analysis willnow turn.The complex security situation in occupied territoryThe complexity of the security challenge occurring during occupation will first beaddressed by discussing the concept of ‘violent’ as opposed to ‘calm’ occupation.Historical examples of violent occupations from World War II, and particularly themore recent 2003–2004 occupation of Iraq, will be used to highlight the nature,scope, and intensity of hostilities that can occur during such occupations. This willparticipation. See James Molony Spaight, War Rights on Land, MacMillan, London, 1911, pp. 51–56.Inhabitants who rose to fight in territory that was occupied originally had no right to do so; however,provision was made in 1949 in Art. [Art.] 4(A)(2) of GC III to provide prisoner-of-war status to membersof organized resistance movements belonging to a party to a conflict. Those members have to meet specificconditions of being under responsible command, wearing a fixed distinctive sign recognizable at adistance, carrying arms openly, and conducting their operations lawfully. However, these conditions forlegitimate status for members of organized resistance movements are largely seen as being unrealistic inpractice. See Howard Levie, ‘Prisoners of war in international armed conflict’, inInternational LawStudies, Vol. 59, 1977, p. 42.55 AP I, Art. 44(3) (emphasis added). In those circumstances, the combatant must carry arms openly duringeach military engagement and during such time that he or she is visible to an adversary while engaged in amilitary deployment preceding the launching of an attack.56 For example, see the Reservations made by Canada, the United Kingdom, France, and Germany, availableat: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P (last visited February 2012.).57 GC IV, Art. 78.58 Ibid., Art. 68.59 John Keegan, A History of Warfare, Vintage Books, New York, 1993, p. 57: ‘[t]he civilized societies inwhich we best like to live are governed by law, which means that they are policed’.60 GC IV, Arts. 64–78.276