Occupation

K. Watkin – Use of force during occupation: law enforcement and conduct of hostilitiesconducting an operation, thereby providing justification for the strike onceappropriate precautions are taken.Given the complexity of the situation on the ground and the diversity of thethreats inherent in a belligerent occupation, it is inevitable that there will be bothinterface and overlap in the application of the two legal regimes. The challenge forcourts, tribunals, state legal advisers (both military and civilian), and legal analystswill be to avoid formalistic assessments of the law that do not address the complexityof the threat and the capabilities or tactical limitations of the security forcesinvolved. However, what is clear is that the maintenance of public order and safetyin occupied territory under IHL is primarily and predominantly a law enforcementfunction. This is the situation regarding ordinary dealings with civilians in theoccupied territory, 284 and extends to law enforcement activity that is an essentialpart of a counter-insurgency effort designed to counter criminal acts by insurgentgroups. In this respect, the Occupying Power is in a similar position to that of thedisplaced government if it was dealing with an insurgency during an internalconflict. The activity performed by either police or military forces must conformwith the widely accepted human rights norms governing law enforcement,regardless of whether a humanitarian or a human rights law framework is appliedto determine accountability for the use of any force. It points to a default position ofapplying human-rights-based law enforcement norms in meeting the OccupyingPower’s humanitarian law mandate to maintain order, unless the security situationengages the conduct of hostilities framework. 285ConclusionAs this analysis has demonstrated, belligerent occupation – such as occurredin Iraq from 2003 to 2004 – can present a complex and violent security challengeto the Occupying Power. The obligation to restore and maintain public orderand safety, as far as possible, has long made the Occupying Power responsiblefor policing the inhabitants of the occupied territory. At the same time, theOccupying Power may be engaged in hostilities with those wishing to participatein the ongoing international armed conflict. Inevitably, the maintenance ofsecurity involves an integration, and at times an overlap, of effort between lawenforcement and military forces. This arises from the requirement to police thepopulation and the predominate role that police forces play in countering aninsurgency.Human rights norms associated with law enforcement activity, such as theright to life, are an integral part of IHL. This is consistent with the obligations on the284 Elbridge Colby, ‘Occupation under the laws of war II’, inColumbia Law Review, Vol. 26, 1926, p. 151.285 There will continue to be a requirement to separate policing governed by human rights norms and theconduct of hostilities. See René Provost, International Human Rights and Humanitarian Law, CambridgeUniversity Press, Cambridge, 2002, pp. 349–350, who notes that ‘while there is indeed space forenlightened cross-pollination and better integration of human rights and humanitarian law, eachperforms a task for which it is better suited than the other, and the fundamentals of each system remainpartly incompatible with that of the other’.314