Occupation

Volume 94 Number 885 Spring 2012are not included in humanitarian law. 254 However, there are also significant andimportant areas of overlap. There does not always need to be an interpretive struggleseeking to apply one body of law in preference to the other. As has been noted, theWall case addressed the issue of simultaneous application when it was noted thatthere are rights that ‘may be matters of both these branches of international law’. 255For example, the right to individual self-defence, normally assessed accordingto human right norms, is recognized under humanitarian law as a matter of bothtreaty 256 and customary international law. 257The same can be said about the rights of inhabitants of the occupiedterritory regarding their right to life, and other rights associated with lawenforcement. While the right to life is interpreted differently when targetingcombatants, members of organized armed groups, or persons taking a direct part inhostilities, it is not in respect of civilians not actively engaged in the conflict. 258Therefore, it is human rights standards that would be applied in assessing any use offorce against them by security forces. In this respect, the application of these humanrights norms recognized in humanitarian law substantively matches that reflected inhuman rights law.Given this incorporation of these human rights norms, it can be arguedthat there is limited potential for a ‘conflict of norms’ between the two bodies oflaw. 259 To the extent that there is a conflict, it is most likely to arise where an attemptis made to apply human-rights-based law enforcement norms to a situation ofhostilities, such as targeting, or to introduce humanitarian law norms to ordinarypolicing. The question would have to be asked in each case why it would benecessary or legally appropriate to do so. 260254 Ibid., p. 594; Y. Dinstein, above note 4, pp. 84–85.255 Wall case, above note 23, p. 131. See also Jochen Abr. Frowein, ‘The relationship between human rightsregimes and regimes of belligerent occupation’, inIsrael Yearbook on Human Rights, Vol. 28, 1998, p. 8,who notes that ‘humanitarian law may also be referred to in order to support the application of humanrights law in situations of armed conflict’.256 See GC I, Arts. 22(1) and 22(2) regarding arming medical personnel and sentries, etc.; AP I, Arts. 65(3)and 67(1)(d) regarding arming persons for self-defence relating to civil defence. See also the Rome Statute,above note 196, Art. 31(1)(c).257 ICTY, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgment, 26 February 2001,para. 451.258 Geoffrey Corn, ‘Mixing apples and hand grenades: the logical limit of applying human rights norms toarmed conflict’,inJournal of International Humanitarian Legal Studies, Vol. 1, 2010, p. 61 : ‘Armed forceshave increasingly come to terms with the reality that even during armed conflict, their authority in relationto interactions with individuals falling outside the category of operational opponents – namely civilians orformer enemy combatants who are hors de combat – is operationally similar to the authority of policeofficers interacting with the public during times of peace’.259 Yuval Shany, ‘Human rights and humanitarian law as competing legal paradigms for fighting terror’, inO. Ben-Naftali, above note 220, p. 25, where it is noted that the ‘normative gaps between “law and order”and the “armed conflict” paradigms are narrowed’ in part ‘due to numerous obligations pertaining to therespect for the rights of individuals in occupied territories, which limit the counter-terrorism optionsavailable to occupying forces’. This statement was supported by reference to GC IV, Art. 27, and ICCPR,Arts. 17 and 23. While this does not appear to go as far as stating that there is a complete congruencebetween the two normative frameworks, it is indicative of similar outcomes in applying law enforcementand hostilities norms in this area.260 G. Corn, above note 258, pp. 55–56, where he notes that ‘without careful and critical assessment of whenand where human rights norms are logically applicable during armed conflict and where that logic307