Occupation

Volume 94 Number 885 Spring 2012with enemy civilians, the nature of a counter-insurgency is such that ‘in a guerrillastruggle one must seek their sympathy and support’. 142 As was evident in the Iraqoccupation, the failure to maintain law and order can create animositytowards the Occupying Power and contribute to a broader insurgency, 143 althoughit is recognized that the motives for the Iraq insurgency were multi-faceted. 144Even if reliance on a narrow interpretation of the law discussed above meansthat the legal obligation to maintain law and order does not commence untiloccupation is established, there remains a strong moral and operational advantagein limiting criminal activity where feasible. In any event, an occupation ofterritory will not always be unpopular in the eyes of the inhabitants. This securitysituation may be even more complex where the occupation ends up being atransformative one, with various factions within the territory vying for politicalcontrol. 145The legitimacy of belligerent acts and the implication of the local policeAnother factor that can complicate the role of the Occupying Power in maintaininglaw and order is the issue of the interaction between foreign security forces andthose of the occupied territory. Article 51 of the Fourth Geneva Convention bans theforced participation of protected persons in the armed or auxiliary services of theOccupying Power or their being compelled to ‘undertake any work which wouldinvolve them in the obligation of taking part in military operations’. 146 However, theConvention does not specifically make reference to indigenous police forces andtheir interface with the ongoing hostilities in the context of law enforcement. Inaddressing the complex security situation created by armed resistance, the GenevaConvention IV Commentary does seek to provide some guidance. That commentaryindicates that police personnel of the occupied territory ‘cannot under anycircumstances be required to participate in measures aimed at opposing legitimatebelligerent acts, whether commenced by armed forces hostile to the OccupyingPower, by corps of volunteers or by organized resistance movements’. 147Presumably, those personnel could agree to do so voluntarily. The Commentaryalso notes that, owing to the criminal nature of acts occurring outside thosecontemplated by Article 4 of the Third Geneva Convention, it appears that ‘the142 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, Basic Books,New York, 1977, pp. 186–187.143 T. E. Ricks, above note 80, pp. 135–138; D. H. Bayley and R. M. Perito, above note 83, p. 10; A. S. Hashim,above note 97, pp. 19–20.144 A. S. Hashim, above note 97, pp. 59–124, where the origins and motives of the insurgency are identified asincluding the protection of Sunni identity; dissolution of the Iraqi security forces; nationalism, honour,revenge, and pride; tribal motives; religion; and political goals including ejecting the foreign occupation.145 A. Roberts, ‘Transformative military occupation’, above note 81, pp. 615–616.146 GC IV, Art. 51.147 Geneva Convention IV Commentary, above note 15, Art. 54, p. 307 (emphasis added). See KennethWatkin, ‘Maintaining law and order during occupation: breaking the normative chains’, inIsrael LawReview, Vol. 41, 2008, pp. 182–184, for a more detailed discussion of the issue of employing local policeforces.287