Occupation

Volume 94 Number 885 Spring 2012tailored to the specific situation’. 228 In this respect, ‘the most important indicatorsare the precision and clarity of a rule and its adaptation to the particularcircumstances of the case’. 229 However, this ‘conflicting norms’ approach has tobe reconciled with the specific wording in the Nuclear Weapons case, whichcharacterized humanitarian law as a tool for interpreting human rights law. One wayof dealing with the wording of that case and the Wall case has been to suggest that,since there is no reference to the lex specialis principle in the subsequent Congo case,‘it is not clear whether the omission was deliberate and shows a change in theapproach of the Court’. 230 However, it is not evident how an omission in that case,assuming that there was one, would actually constitute a reversal of the specificlanguage found in two previous judgments by the same court, particularly given theimportance of those decisions. 231 Perhaps the most apt explanation of the lexspecialis principle in respect of the law of occupation is that it acts as a ‘prismfiltering human rights during armed conflict’. 232However, a more fundamental question needs to be asked regarding thehumanitarian law obligation to maintain order in occupied territory as to whetherthe issue even needs to be looked at as a ‘conflict’ of human rights norms. In thisrespect, humanitarian and human rights law govern the same activity: the policingof territory. When a ‘conflicting norms’ approach is suggested, in respect of eitherinternal armed conflicts 233 or occupation, 234 the legal paradigm applicable to lawenforcement is almost invariably suggested to be human rights law. Such aninterpretation is reinforced by a view that, since Article 43 of the Hague Regulationsand Article 64 of the Fourth Geneva Convention do not provide any detail regardingthe use of potentially lethal force, it is human rights law that ‘would govern the useof force by the OP [Occupying Power] with respect to the OP’s entitlement andobligation to restore and maintain public order and safety’. 235 In effect, while theobligation is found in international humanitarian treaty law, the actual maintenanceof order would have to be put into operation by the application of internationalhuman rights law.To the extent that this argument is based on the view that humanitarian lawlacks specific treaty provisions governing how order is to be maintained, it mighteven be argued that the principle of lex specialis, as set out in the InternationalCourt of Justice cases, would not have to be applied. Human rights law would then228 C. Droege, above note 227, p. 524.229 Ibid.230 See ibid., p. 522. See also M. Milanovic, above note 220, p. 100.231 Y. Dinstein, above note 151, p. 23. Dinstein suggests that ‘this lapse does not prove much’.232 Y. Dinstein, above note 4, p. 86.233 William Abresch, ‘A human rights law of internal armed conflict: the European Court of Human Rights inChechnya’, inEuropean Journal of International Law, Vol. 16, No. 4, 2005, p. 747, who states that ‘[t]herationale that makes resort to humanitarian law as lex specialis appealing – that its rules have greaterspecificity – is missing in internal armed conflicts ...the humanitarian law of internal armed conflict isquite spare and seldom specific’.234 C. Droege, above note 227, p. 538, where it is stated: ‘[i]n abstract legal terms, the answer mustbe ...where the occupying power has effective control, is in a law-enforcement situation and capable ofmaking arrests, it should act in compliance with the requirements of human rights law’.235 UCIHL Meeting Report, above note 64, p. 21.303