Occupation

K. Watkin – Use of force during occupation: law enforcement and conduct of hostilitiesThe primacy of the police functionIn respect of the performance of a policing function ‘occupation authorities,being responsible for maintaining law and order, are within their rights in claimingcooperation of the police’ regarding the suppression of criminal activity. 171 While it isopen for public officials such as police to abstain from filling their functions forreasons of conscience, 172 the Geneva Convention IV Commentary recognizes thatit is the moral duty for such officials ‘to remain at their posts in the interests of theirfellow citizens’. 173 Ultimately, their employability may depend on the degree to whichthey are willing, able, and capable of engaging in police duties that could involveusing force against insurgents. However, as occurred in Iraq, the establishment of anew governing authority – and with it security forces – increases the likelihood thatthe police forces become engaged in the counter-insurgency campaign.It is clear that policing remains of fundamental importance duringoccupation, both in terms of general law enforcement and as part of a securitycampaign designed to counter the illegal activities of insurgent groups. However,separating the law enforcement role from the conduct of hostilities aspect of aninsurgency is neither factually nor legally simple. As discussed above, factors, suchas the intensity of the hostilities and the organization of the parties to the conflictmight provide useful practical indicators of insurgent activity. 174If an ‘organized resistance movement’ meeting the criteria of Article 4of the Third Geneva Convention was threatening the Occupying Power, thenidentification of the threat could be significantly easier. 175 However, as happened inIraq, it is more likely that organized groups that do not meet the requirementsof lawful belligerency and civilians taking a direct part in hostilities will carry outinsurgent activities. 176 Further, police will often find themselves on the frontlines ofthe conflict owing to their integration into local communities, and, through theassignment of roles such as defending property and personnel, subject to attack.To be consistent with traditional counter-insurgency doctrine, operationalplanning should rely on the ‘police primacy principle’. 177 That principle recognizesthat a key objective is to reduce military involvement and increase local police171 Geneva Convention IV Commentary, above note 15, Art. 54, p. 307. See M. Sassòli, above note 11, p. 665,who takes the view that ‘[p]olice operations are not directed at combatants (or civilians directlyparticipating in hostilities) but against civilians (suspected of crimes threatening public order)’.172 GC IV, Art. 54.173 Geneva Convention IV Commentary, above note 15, Art. 54, p. 306.174 ICTY, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal onJurisdiction, above note 157, para. 70.175 Hostage case, above note 19, p. 1244. In limited circumstances some groups may operate as lawfulcombatants. The court noted ‘[t]here is convincing evidence in the record that certain band units in bothYugoslavia and Greece complied with the requirements of international law. ...But the greater proportionof the partisan bands failed to comply with the rules of war entitling them to be accorded the rights of alawful belligerent’.176 M. Sassòli, above note 11, p. 665, n. 21. See also D. Kretzmer, above note 50, p. 207.177 D. H. Bayley and R. M. Perito, above note 83, pp. 68–69. This principle is discussed in the context of aforeign intervention focused on the creation of a self-sustaining legitimate government. However, it hasequal applicability to the maintenance of public order in a situation of occupation.294