Occupation

K. Watkin – Use of force during occupation: law enforcement and conduct of hostilitiesIn applying a complementary approach, if any gaps exist, they can beaddressed by the application of human rights law, as a matter of either treaty orcustomary law. 261 Any court or tribunal interpreting the human rights normsguaranteed by IHL can look to the same ‘soft law’ instruments outlining theprinciples governing law enforcement that are applied under the human rightsaccountability regime. 262 In Prosecutor v. Kunarac, the Trial Chamber of the ICTYnoted that ‘[b]ecause of the paucity of precedent in the field of internationalhumanitarian law, the Tribunal has, on many occasions, had recourse toinstruments and practices developed in the field of human rights law’. 263 Further,the decisions of domestic courts and regional human rights bodies assessing lawenforcement activities under human rights law can also be considered. As has beennoted, one of the sources of international law is ‘the general principles of lawrecognized by civilized nations’, such as those appearing in municipal law. 264 Anassessment of the general principles of law enforcement applied in domesticjurisdictions, whether as a matter of common law or as one of civil law, also has theadvantage of enhancing the identification of universal standards of conduct.There are numerous distinct advantages to applying human-rights-basedlaw enforcement norms as part of IHL rather than as a discrete application ofhuman rights law. First, whether these norms are applied as a matter of treaty orcustomary international humanitarian law, the difficult debate over the extraterritorialapplication of human rights treaty law can be prevented. Armed conflictmay occur in what has been termed the ‘area of war’, comprising the territories ofthe parties to the conflict as defined by national boundaries, the high seas, and theexclusive economic zone, although military operations may more narrowly occur inoperational zones or theatres of war. 265 During such conflict, some provisions ofIHL may have broad application to the entire territory of the Parties to a Conflictand ‘not just to the vicinity of actual hostilities’. 266 This would include the law ofoccupation with its provisions governing the maintenance of public order, whichextend to the entire territory that is occupied. 267 As a result, human rights normsdissipates, the risk of overbroad application creates the potent[ial] to disable the efficacy of militaryoperations’.261 C. Droege, above note 227, pp. 512–522, for a discussion of the meaning of ‘complementarity’.262 For example, the UN Basic Principles on Use of Force, above note 175.263 ICTY, Prosecutor v. Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T, 22 February 2001, p. 160, para.467.264 M. N. Shaw, above note 239, pp. 98–99; and Restatement of Foreign Relations Law, above note 51, p. 152,para. 701(c), where it is indicated that a state is required to respect the human rights of a person subject toits jurisdiction ‘that it is required to respect under general principles of law common to the major legalsystems of the world’.265 C. Greenwood, above note 247, pp. 59–62.266 Tadić, Decision on the Defence Motion, above note 157, para. 68.267 Geneva Convention IV Commentary, above note 15, p. 47, where it is noted in respect of the jurisdiction ofthe Fourth Geneva Convention referring to persons being in the hands of a Party to the Conflict, that‘[t]he mere fact of being in the territory of a Party to the conflict or in occupied territory implies that one isin the power or “hands” of the Occupying Power. It is possible that this power will never actually beexercised over the protected person: very likely an inhabitant of an occupied territory will never haveanything to do with the Occupying Power or its organizations. In other words, the expression “in thehands of” need not necessarily be understood in the physical sense; it simply means that the person is in308