Occupation

Volume 94 Number 885 Spring 2012particularly the Hague Regulations of 1907’. 169 Although the conflict in Iraq was alsosubject to the provisions of the later 1949 Geneva Conventions, those Conventionsdid not change the basic premise of the Hostage case judgment. 170It should be of particular concern that claiming that the law governinginternal conflicts readily applies to occupation may call into question the broaderapplicability of the Fourth Geneva Convention. This may particularly arise insituations where a majority or all of the resistance forces have little or no connectionto the displaced regime. It also introduces additional levels of complexity, with theOccupying Power being asked to attempt a simultaneous application of the lawgoverning international armed conflict with its internal counterpart. Such situationscan occur; however, from the viewpoint of a practical and consistent application ofthe law they should be avoided whenever possible. There is also the potential formultiple separate non-international armed conflicts occurring where there arenumerous different armed groups engaged in hostilities. Moreover, in focusing onthe legitimacy of organized armed groups the theory fails to address the situationwhere individual civilians take a direct part in hostilities. It is not clear whether theywould be considered to be participants in an international or a non-internationalarmed conflict.While it is the international law of armed conflict that applies to theoccupier, this does not mean that non-international armed conflicts can never occurin occupied territory. As the Tadić decision contemplates, an armed conflict mayoccur when two organized armed groups fight one another. In the context of anoccupation, such fighting between these groups could be seen as a conflict not of aninternational character. However, this is the exception rather than the rule. In anyevent, as has been noted, suggesting that a conflict is non-international in characterreinforces the argument that police forces have a role to play in dealing with suchillegal activity. While not necessarily encompassing traditional crimes such as theftor drug trafficking, participation by non-state actors in internal conflicts has longbeen viewed by states in particular as ‘criminal’ in nature. Acts that are carried outcontrary to the security interests of the state in such conflicts may be treated ascrimes. This inevitably points towards involvement of the criminal justice system, ofwhich policing is such an integral part.In the final analysis, hostilities conducted against the Occupying Power,including those carried out by a diverse range of organized armed groups, fitcomfortably within the law governing international armed conflicts, includingoccupation law. It is difficult to see how any limited benefits gained from introducingthe law governing non-international armed conflict outweigh the application of thebetter-developed and articulated law applicable to international conflicts. Overallthis self-imposed interpretive complexity is neither necessary nor desirable from thebroader perspective of protecting the inhabitants of the occupied territory.169 Hostage case, above note 19, pp. 1243–1244.170 GC III, Art. 135 and GC IV, Art. 154. The 1949 Geneva Conventions are supplementary to the 1907Hague Regulations.293