Occupation

K. Watkin – Use of force during occupation: law enforcement and conduct of hostilitiesClassic counter-insurgency doctrine focuses on good governance, with a primaryrole for policing in countering the insurgent threat. It is as applicable in a situationof occupation as it is in an internal armed conflict. This is reflected in the fact thatthe nature of the security threat facing state authorities (either Coalition or Iraqi)did not change when the occupation legally ended but the struggle to control theviolence continued. 117As Sir Robert Thompson stated in 1966: ‘[a]n insurgent movement is a warfor the people. It stands to reason that government measures must be directedtowards restoring government authority and law and order throughout the countryso that control over the population can be regained and its support won’. 118 Thelink between governance, the maintenance of law and order, and counterinsurgencyoperations is reflected in contemporary military doctrine. 119 Theconduct of a counter-insurgency campaign places a premium on the employmentand, if necessary, development of police and internal intelligence services.Police play a particularly important role in gathering intelligence on insurgentactivities. 120The maintenance of law and order requires respect for the rule of law. Theindicia of a functional legal system include the police, a law code, judicial courts, anda penal system. 121 This is generally reflected in humanitarian law, which providesfor the continuance in force of the laws of the occupied territory, 122 the continuedfunctioning of tribunals 123 and the maintenance of the status of public officials andjudges. 124 As James Spaight noted in 1911, seeing that justice is done and‘malefactors are brought to book, is an essential condition of good government andpromotes the submission of the inhabitants to the rule of the stranger’. 125 However,‘[n]o conventional rules govern the special problem of indigenous law-enforcementmovements and members of other militias and members of other volunteer corps which are independentof the regular armed forces must belong to a Party to the conflict, refutes the contention of certain authorswho have commented on the Convention that this provision amounts to a “ius insurrectionis” for theinhabitants of an occupied territory’.117 A. Roberts, ‘Transformative military occupation’, above note 81, p. 617, who notes that ‘even if theoccupation was theoretically over, the likelihood remained that uses of force, perhaps even exercises ofadministrative authority, that closely resembled a situation of occupation would occur’.118 Robert Thompson, Defeating Communist Insurgency, Hailer Publishing, St. Petersburg, 1966, p. 51. Seealso David Galula, Counterinsurgency Warfare: Theory and Practice, Frederick A. Praeger, New York,1964, pp. 89–90; and Frank Kitson, Low Intensity Operations: Subversion Insurgency and Peacekeeping,Faber & Faber, London, 1971, p. 49. For an overview of the history of counter-insurgency theory, seeDaniel Marston and Carter Malkasian, ‘Introduction’, in D. Marston and C. Malkasian, above note 93,pp. 13–19.119 Counterinsurgency Manual, above note 115, pp. 360–361, paras. D-38–D-39.120 R. Thompson, above note 118, pp. 104–106; Counterinsurgency Manual, above note 115, pp. 229–230,paras. 6–90–6–91; D. H. Bayley and R. M. Perito, above note 83, p. 78.121 Counterinsurgency Manual, above note 115, pp. 360–361, paras. D-38–D-39; D. H. Bayley andR. M. Perito, above note 83, p. 79.122 Hague Regulations, Art. 43. This article indicates respect for existing laws is required ‘unless absolutelyprevented’. See also GC IV, Art. 64, where provision is made for the repeal or suspension of penal laws ‘bythe Occupying Power in cases where they constitute a threat to its security or an obstacle to the applicationof the present Convention’.123 GC IV, Art. 64.124 Ibid., Art. 54.125 J. M. Spaight, above note 54, p. 358.284