Occupation

Volume 94 Number 885 Spring 2012capacity. This is so that primary personnel deployed among the population todeal with the insurgency are trained to use minimum force and expected toexercise individual discretion. 178 However, insurgent activity can impact on whatthe police can do as ‘[i]nsecurity indicates both a need for police and an impedimentto their effectiveness’. 179 It is also evident that the nature and scale of the threatposed by ongoing hostilities, as well as the organization, training, traditional role,and equipment of police forces, means that they are not the only security forcesengaged either in law enforcement or in countering the insurgency during anoccupation. Military forces of the Occupying Power will be required to participate inhostilities, fill gaps in the policing capacity, and provide support to policeoperations. 180 The issue raised above in the section ‘Occupation and the rule oflaw’ remains of how the legal frameworks governing the use of force in lawenforcement and the conduct of hostilities in this complex security environmentrelate to one another. Having established the factual reality of ‘violent’ occupationand the significant challenges facing security forces, it is to that issue that theanalysis will now turn.Legal frameworks governing the use of force in hostilitiesand policingOne commentator has suggested that ‘[p]ublic order is restored through policeoperations, which are governed by domestic law and international human rights,and not through military operations governed by IHL on the conduct ofhostilities’. 181 However, that assessment was tempered with the acknowledgementthat continuing organized armed resistance makes the distinction between theconduct of hostilities and police operations directed against criminal activity moredifficult to establish. 182 While a preference for a clearly bifurcated system ofnormative frameworks to govern police and military operations in occupiedterritories is understandable, the complex security situation requires a moreintegrated and nuanced approach. In this respect it is not clear how the maintenanceof ‘public order and safety’ can be limited to police operations, either factually orlegally. Public order is a broader concept than ‘law and order’, 183 which itselfhas been interpreted to be more than simply the enforcement of criminal law.178 Ibid., p. 69. It is noted by authors that four characteristics distinguishing the police from the military aretheir being lightly armed, or not at all; their deployment as individuals or small groups; the exercise ofmore individual discretion; and an organizational structure separate from the military.179 Ibid.180 Ibid., p. 77.181 M. Sassòli, above note 11, p. 665.182 Ibid.183 Y. Dinstein, above note 4, pp. 91–94. In relying on the original wording of the preceding 1874 BrusselsProject of an International Declaration on the Law and Customs of War and the 1880 Oxford Manual ofthe Laws of War on Land, he adopts a broad interpretation of Article 43 of the Hague Regulations toinclude public order and life, and states: ‘[i]t is not enough for the Occupying Power to conscientiouslyprotect life and limb. ...The military government cannot observe with equanimity an economy underoccupation in a shambles or a social breakdown causing distress to the civilian population’ (ibid., p. 93).295