Notwithstanding the significant body of treaty and customary international law dealing with occupation, there remain a number of unresolved issues concerning how law and order is maintained in an occupied territory. The debate often centres on whether the use of force by an occupier is governed by international humanitarian law (IHL) or human rights law. This article will review that issue by looking at belligerent occupation where violent resistance is occurring; outline the legal norms governing the use of force by an occupier in maintaining law and order; and assess how the law applies in these complex security situations.
The article is divided into six parts. The first part outlines the law governing occupation; it includes a discussion of the sources of normative obligations requiring an occupier to maintain order, and when those obligations begin. In the second part, the nature of the security threats – ranging from organized armed groups participating in an ongoing international armed conflict to ordinary criminal activity – will be discussed to provide a better understanding of the complex security situation within which order often has to be maintained. This analysis will refer to occupation during World War II and use the 2003–2004 Iraq War as an example of ‘violent’ occupation. Particular emphasis will be placed on the Iraq conflict, in order to provide a contemporary example of the complexity of the security situation during such occupation. The third part will address the similarities between maintaining order in occupation and conducting a counter-insurgency campaign in non-international armed conflict. In particular, the important role of policing during such a campaign will be outlined. This will highlight the unique environment in which security forces must operate when conducting operations among the population of an occupied territory.
Having established the nature of the security threats, the fourth part outlines the limitations prescribed by humanitarian and human rights norms regarding the use of force. It also looks at the requirements of accountability under IHL and human rights law. This will establish the normative limits on the use of force and set the scene for a discussion of the options available to the Occupying Power to maintain security. The fifth part discusses the principle of lex specialis derogate lex generali (‘lex specialis’) in order to assess the interface between human rights law and its humanitarian law counterpart. Particular emphasis is placed on looking at the long-standing integration of human rights norms into humanitarian law. In this respect, a distinction is made between norms or standards, such as the right to life, and the legal regimes (human rights and humanitarian law) within which they are situated. This integration supports an interpretation that there is no ‘conflict of norms’ in respect of law enforcement within occupied territory. In this respect, the human-rights-based law enforcement norms operate within both the international human rights and the humanitarian law frameworks. Finally, the article looks at the practical application of the use of force during belligerent occupation. This analysis will highlight that the use of human-rights-based law enforcement or conduct of hostilities norms (i.e. targeting, and precautions in the attack) to govern the use of force will be dependent upon the nature of the threat being faced.
Occupation and the rule of law
Establishment of occupation
There are a number of challenging issues associated with the concept of occupation. They include categorizing occupations in general; establishing what constitutes ‘occupation’ for the purposes of IHL; determining when occupation begins; and establishing how legal rights, such as the right to life, are extended to inhabitants of occupied territory. The term ‘occupation’ has been used to describe a wide range of activity that fundamentally involves territory being put under the control of a foreign state, international organization, or entity that has no sovereign title. Adam Roberts has identified seventeen types of occupation, ranging from wartime and post-war to peacetime. Other possible categories include control of all or part of a territory by forces acting under the authority of the United NationsFootnote 1 and occupation by a non-state entity.Footnote 2 There is a school of thought that supports a broad application of the law of occupation,Footnote 3 although classic ‘belligerent occupation’ remains the iconic standard against which the law of occupation is normally assessed.Footnote 4
Yoram Dinstein notes that belligerent occupation, which only arises in the context of an international armed conflict between states, is often shrouded in the myth that it is an anomaly or even an aberration of international law.Footnote 5 However, it is a common and integral part of armed conflict since ‘[o]nce combat stabilizes along fixed lines, not coinciding with the original international frontiers, the cross-border areas seized and effectively controlled by a Belligerent Party are deemed to be subject to belligerent occupation’.Footnote 6 The challenge often appears to be one of getting a state to admit that it is an occupier.Footnote 7 Eyal Benvenisti has observed that modern occupiers prefer, for a variety of reasons, not to establish direct forms of administration. In his view, an acknowledgment of ‘the status of occupant is the first and the most important indication that the occupant will respect the law of occupation’.Footnote 8 Therefore, a key issue is the determination of when occupation is established at law.
Article 42 of the 1907 Hague Land Warfare Regulations sets out the legal test for occupation: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’Footnote 9 An aspect of this definition impacting directly on the question of the responsibility of the Occupying Power for law enforcement is what establishing and exercising authority actually mean. Assistance in that regard is available by referring to Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention.Footnote 10 The occupier is required by Article 43 of the Hague Regulations to ‘take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’.Footnote 11 This obligation is also reflected in Article 64 of the Fourth Geneva Convention, which states: ‘[t]he Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations … to maintain the orderly government of the Territory …’.Footnote 12 That Convention also requires that ‘protected persons’ are protected against all acts or threats of violence, and establishes rules governing the maintenance of laws, courts, internment, and so forth.Footnote 13
It has been noted that, in a technical sense, ‘the precise moment when an invasion turns into an occupation is not always easy to determine’.Footnote 14 Two interpretations have traditionally been suggested. The first approach applies a restrictive meaning to occupation as is reflected in the Hague Regulations (the ‘narrow interpretation’). The second, found in the commentary to the Fourth Geneva Convention by Jean Pictet,Footnote 15 interprets ‘occupation’ in that Convention more broadly (the ‘broad interpretation’). Regarding the first approach, Leslie Green indicates that ‘[t]erritory is occupied only when it is actually under the control and administration of an occupant and extends only to those areas in which he is actually able to exercise such control’.Footnote 16 This interpretation reflects the view that there must be no authority exercised other than that imposed or allowed by the occupier, that local forces are no longer effective in the area, that the population is disarmed, and that the Occupying Power is ‘effectively maintaining law and order with the troops available or easily secured to assist in the task if needed’.Footnote 17 In this respect, ‘while invasion represents mere penetration of hostile territory, occupation implies the existence of definite control over the area involved’.Footnote 18 The 1948 Hostage case (United States of America v. Willem List, et al.)Footnote 19 distinguished between invasion and occupation as follows:
The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied.Footnote 20
The requirement for a significant level of control is consistent with the International Court of Justice's decision in the 2005 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), which held that physically stationing troops at an airport did not ‘allow the Court to characterize the presence of Ugandan troops stationed at Kisangani Airport as occupation in the sense of Article 42 of the Hague Regulations of 1907’.Footnote 21 Instead it must be shown that troops ‘were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government’.Footnote 22 Neither this case, nor the 2004 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory opinion,Footnote 23 addressed the question of a broader interpretation of ‘occupation’ under the Fourth Geneva Convention.Footnote 24 Under such an interpretation, the occupier must be in a position to carry out governance over the occupied territory even though it does not exercise sovereignty.Footnote 25 However, where an occupation is established at law, the failure to set up an administration does not relieve the occupier of its obligations under IHL.Footnote 26
The broader, Pictet, interpretation maximizes the protection provided to civilians. The Geneva Convention IV Commentary suggests that the application of the Convention to individuals ‘does not depend upon the existence of a state of occupation within the meaning of Article 42’ and that the provisions of the Convention would extend to the invasion phase before the establishment of a stable regime of occupation.Footnote 27 This would include situations when a patrol ‘penetrates into enemy territory without any intention of staying there’.Footnote 28 A broader interpretation of occupation has been applied by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Naletilic Footnote 29 and has been recognized in academic literature.Footnote 30 However, it has also been the subject of criticism.Footnote 31 The present approach of the International Committee of the Red Cross (ICRC) is to look to Article 42 of the Hague Regulations as providing the legal benchmark for determining the existence of an occupation, while at the same time recognizing that the theory put forward by Jean Pictet lowers the threshold application of certain Fourth Geneva Convention norms so that their application during an invasion phase can result in greater humanitarian protection for protected persons found in invaded territory that is not yet occupied as a matter of law.Footnote 32
Although driven by humanitarian concerns, the extension of the Fourth Geneva Convention obligations as a matter of treaty law to invasions, patrols, and raids is challenging from a practical perspective. Any military force attempting to apply the interpretation would be forced to identify a more limited set of Fourth Geneva Convention provisions that can be practically applied in a situation where control of the territory is limited in both a substantive and a temporal sense.Footnote 33 Meeting the Hague Regulations and Fourth Geneva Convention obligations to restore and ensure order would prove particularly challenging, if not impossible, where control is not effective. As will be discussed, effective law enforcement requires a level of control that cannot easily be attained in the transitory and rapidly evolving situation inherent in the early stages of invasion, or while conducting a patrol.
In any event, when dealing with the civilian population, the military commander must comply with well-established general principles of humanitarian law that protect the civilian population even when the territory is not occupied. As is reflected in the ICRC Customary International Humanitarian Law study,Footnote 34 custom can provide a source for such rules. In that context, principles found in the Fourth Geneva Convention may inform those customary rules. For those seeking a treaty-based authority regarding the treatment of civilians during such transitory situations, Article 75 of Additional Protocol IFootnote 35 applies where persons under the power of a party to the conflict do not benefit from more favourable treatment under the Conventions or the Additional Protocol.Footnote 36 Similarly, Article 75 may inform the customary rules applicable in these situations.Footnote 37
Rule of law
The maintenance of order within an occupied territory requires a clear commitment to the rule of law.Footnote 38 This is linked to the issue of rights for the inhabitants of the territory. In respect of humanitarian law, Article 43 of the Hague Regulations has been described as a ‘mini-constitution for the occupation administration’,Footnote 39 while the Fourth Geneva Convention is referred to as a ‘bill of rights for the occupied population, a set of internationally approved guidelines for the lawful administration of the occupied territories’.Footnote 40 Human rights norms, including the right to life, are specifically protected in the Hague Regulations,Footnote 41 the Fourth Geneva Convention,Footnote 42 and Article 75 of Additional Protocol I.Footnote 43 This is also reflected in the Geneva Convention IV Commentary, which states: ‘[i]t must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests’.Footnote 44
Human rights law also protects the rights of persons in occupied territory. In the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,Footnote 45 the International Court of Justice held that the two sets of legal regimes apply together, in the sense that human rights law applies in times of war and humanitarian law acts as a form of lex specialis for determining what constitutes an arbitrary deprivation of the right to life under human rights law during hostilities. Further, as the Court stated in the 2004 Wall case,Footnote 46 ‘there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’.Footnote 47
Human rights law is applicable in occupied territory either as a matter of treaty law or as customary international law. While certain states, such as the United States, take the position that human rights treaty law does not have extra-territorial application,Footnote 48 customary international human rights law is not territorially limited.Footnote 49 As David Kretzmer has noted, to suggest that a state does not have obligations towards a person affected by its actions ‘would be incompatible with the very notion of the universality of human rights’.Footnote 50 The scope of such customary law is reflected in the Restatement of the Law: The Foreign Relations Law of the United States, which indicates that it includes protection from murder, torture, or other cruel, inhuman, or degrading treatment or punishment or prolonged arbitrary detention.Footnote 51 Of particular note in respect of law enforcement, the Restatement of Foreign Relations Law specifically links human rights norms to policing. It is indicated that, while murder is stated to be a violation of international law, this would not be the case where it is necessary to take life in exigent circumstances, ‘for example by police officials in line of duty in defense of themselves or of other innocent persons, or to prevent serious crime’.Footnote 52 Therefore, the inhabitant's rights to life, and other rights, are protected under both IHL and human rights law.
It is in the context of maintaining public order and safety that the issue often arises of how the two governing frameworks of humanitarian and human rights law interact with each other. Since the occupation of territory does not end the armed conflict, it is inevitable, as Richard Baxter noted in 1950, ‘that inhabitants of an occupied area will chafe under enemy rule … and that they will in numerous instances, acting singly or in concert, commit acts inconsistent with the security of the occupying forces’.Footnote 53 This reality is reflected in the reference to ‘organized resistance movements’ in the Third Geneva Convention.Footnote 54 It is also relevant to the concept of ‘armed combatants’ in Article 44(3) of Additional Protocol I, where there are special rules regarding the retention of combatant status ‘in situations of armed conflict where, owing to the nature of hostilities, an armed combatant cannot so distinguish himself’.Footnote 55 A number of states have limited the claim for combatant status in those circumstances to occupied territory and armed conflicts involving national liberation.Footnote 56 Further, the Fourth Geneva Convention provides for the administrative detention of civilians in internment and assigned residenceFootnote 57 and for taking penal action against persons who commit offences intended to harm the Occupying Power.Footnote 58
At the same time the maintenance of public order requires that, as in any society, the population be policed.Footnote 59 Unfortunately, neither the Hague Regulations, nor the Geneva Conventions, nor Additional Protocol I refer directly to policing, although such activity is an inherent part of the detention, internment, and prosecution of criminals or security detainees authorized by humanitarian law.Footnote 60 Furthermore, the treaty law does not specifically outline how policing interacts with the conduct of hostilities against those participating in the ongoing armed conflict. However, prior to looking at how policing and military operations interact it is first necessary to gain an appreciation of the complex security challenge that can be presented during occupation. It is to that issue that the analysis will now turn.
The complex security situation in occupied territory
The complexity of the security challenge occurring during occupation will first be addressed by discussing the concept of ‘violent’ as opposed to ‘calm’ occupation. Historical examples of violent occupations from World War II, and particularly the more recent 2003–2004 occupation of Iraq, will be used to highlight the nature, scope, and intensity of hostilities that can occur during such occupations. This will serve to better situate the following legal discussion of the frameworks governing the maintenance of order in occupied territory. Owing to the diverse types of occupations and the unique relationship between the Occupying Power and the inhabitants of an occupied territory, there is sometimes a tendency to view the law of occupation as a body of law distinct from the humanitarian law that generally governs hostilities. It has been suggested that military occupation ‘lies midway between war and peace’Footnote 61 and that ‘there are no major military operations in the occupied zone’.Footnote 62 Similarly, when restoring public order, every Occupying Power is confronted ‘with problems more typical of peacekeeping operations than of traditional inter-state war’.Footnote 63 The nature of the security situation in the territory can be such that there is no regular violence occurring. In that case, it is described as a ‘calm’ occupation, or when violence does occur it is viewed as an ‘outbreak’ or ‘resumption’ of hostilities.Footnote 64
There is no doubt that there are situations of occupation of relative calm, where no hostilities are being conducted or have been conducted for a period of time. However, the use of such terms is problematic to the extent that they may be interpreted as suggesting that peaceful coexistence is the norm and the conduct of hostilities is the exception during a belligerent occupation, or that occupation law is not an integral part of international humanitarian law. Belligerent occupation is fundamentally a product of warFootnote 65 and the history of warfare establishes that an occupying force can be confronted with a wide range of security challenges. Rather than being ‘calm’, there can be situations of elevated, widespread, and protracted violence.
These more violent situations are reflected in the occupations of World War II and more recently in Iraq. The World War II examples are relevant since the 1949 Fourth Geneva Convention was drafted with the scope, scale, and violence of that conflict in mind. These rules governing the protection of the civilian population and the treatment of those threatening the security of the Occupying Power are designed to be applied universally, regardless of the identity of that Power or the organized resistance. An overview of the nature and organization of resistance to occupation will illustrate the complexity of the security situation that can arise during ‘violent’ occupation.
Resistance groups during World War II
World War II provides perhaps the most diverse examples of groups resisting occupation. Owing to the global scale of the conflict, such operations ‘world-wide varied considerably in size, composition, motivation, mission, and effectiveness’ and ‘one resistance action often bore only generic resemblance to another’.Footnote 66 It has been noted that, in light of the initial swift German victories in Europe ‘and the general absence of pre-war planning, it is surprising how quickly national resistance movements sprang up across Europe’.Footnote 67 During most of World War II the resistance in Poland, Czechoslovakia, Norway, Denmark, Holland, Belgium, France, and Italy, applied a more subtle type of guerrilla warfare than that practised in the Soviet Union or Yugoslavia, owing to a lack of suitable terrain for sanctuary, inadequate communications, conflicting temperaments, and political attitudes. Generally, the resistance operated as individuals or small groups carrying out tasks of ‘terror, subversion or sabotage’, intelligence-gathering, and activities such as helping downed Allied airmen, while attempting to build secret guerrilla armies.Footnote 68
In contrast, partisan units in central and northern Russia often operated in operational brigades of guerrillas controlling large areas, with between 12,000 and 20,000 personnel.Footnote 69 Their activities ranged from small-unit ambush and sabotage to co-ordinated operations with the Red Army.Footnote 70 In the complex political environment of Yugoslavia there were two main resistance groups. The nationalist Chetniks and Tito's Communist Partisans began the resistance together, although an irreparable rift developed between them.Footnote 71 Tito worked to develop a regular military organization,Footnote 72 but also employed what the German occupiers called ‘Home Partisans’. At the same time as killing soldiers and conducting sabotage, they operated as a shadow government.Footnote 73
It has been noted that two strategies developed for resistance groups: ‘one conservative and the other revolutionary’.Footnote 74 Russia provides an example of the conservative strategy, where operations were conducted to restore the former regime, while Tito's partisans, who were fighting to take power from the exiled regime, represented the ‘revolutionary’ strategy.Footnote 75 This indicates that resistance movements can be motivated not only by a desire to end the occupation but also by political objectives of their own that affect the conduct of hostilities.
Mao Tse Tung's book On Guerrilla Warfare Footnote 76 is often associated with revolutionary warfare in the wake of World War II. However, it was published in 1937 in the context of the war against Japanese invaders occupying China. In describing such warfare, Mao points out that guerrilla units may be organized from a variety of entities: the masses of the people, regular army units, local militia, the police, the ranks of the enemy, and even bandit groups.Footnote 77 Operationally, their ‘primary field of activity is in the enemy's rear area’, reinforcing the fact that armed conflict often continues once territory is occupied.Footnote 78 Guerrilla forces were assessed as being ‘particularly effective in the Far East where Chinese Communist Guerrillas helped KMT [Kuomintang] regular divisions tie down some 25 Japanese Divisions for most of the war’.Footnote 79
While it might be tempting to view the violent activities of the World War II resistance movements as a relic of a bygone era, the more recent example of Iraq suggests otherwise. Some sixty years after World War II a diversity of resistance groups, methods of operation, motivations, and levels of violence was evident. Further, in respect of maintaining law and order, the occupation of Iraq highlights the challenges of containing criminal activity while addressing the significant security threats posed by insurgent activity. A more detailed overview of the complexity of the security situation in the aftermath of the 2003 invasion of Iraq is particularly helpful in understanding the nature of a ‘violent’ occupation.
The complex security situation in Iraq
The swift and largely conventional Coalition military operation against Iraq that commenced on 20 March 2003 came to a close on 1 May 2003 with the declaration by President Bush that: ‘[m]ajor combat operations have ended’.Footnote 80 While the exact time period of the occupation of Iraq has been the subject of debate,Footnote 81 it is widely considered to have begun on 1 May 2003 and ended on 28 June 2004.Footnote 82 Even before the de jure commencement of occupation, looting and civil disorder began as the United States military reached the centre of Baghdad on 9 April 2003. The Iraqi police and government authority disappeared, and invading military forces largely stood by and watched. It has been noted that: ‘[o]nce it became clear that US soldiers were not going to intervene, public exuberance, joy at liberation, and economic opportunism quickly darkened into a systemic effort to strip the capital's stores and public institutions of everything of value’.Footnote 83 The disappearance of central authority, as well as Saddam Hussein's release of 38,000 inmates from prison in 2002, resulted in criminal elements embarking on a wave of violence including murders, kidnappings, rapes, and home invasions.Footnote 84 It has been remarked that: ‘[b]y conservative estimates, 10,000 Iraqi civilians were killed in the year following the US intervention’.Footnote 85
Military planners had not adequately prepared for the breakdown in public order. The mass disintegration of what had been a police force of questionable quality was exacerbated by a subsequent decision on 23 May 2003, Coalition Provisional Authority Order Number 2 to disband Iraqi Entities. As Thomas Ricks has written, ‘[t]his included not only the army, but also police and domestic security forces of the Ministry of the Interior’.Footnote 86 While significant efforts were made to reconstitute an Iraqi police force, there remained a significant gap in the Coalition's ability to police the occupied territory. The looting in Baghdad made restarting the electrical grid more difficult, which ‘further undermined a burgeoning security problem’ and encouraged crime.Footnote 87 While British forces in Basra moved quickly to adopt a ‘hearts and minds’ approach towards the population at the end of the initial combat phase,Footnote 88 they also struggled to maintain law and order.Footnote 89 The gap in law enforcement capability might have been filled by Coalition or even international police forces; however, it had wrongly been anticipated that Iraqi security personnel would stay in place.Footnote 90 Further, there appeared to be little support within the United States Government for that approach in the early months of the occupation.Footnote 91
The threat to public order was not limited to ordinary crime and lawlessness. The growing insurgency also manifested itself in attacks against Coalition forces with improvised explosive devises (IEDs).Footnote 92 In what has been termed the ‘war of the roadside bomb’, the ‘insurgents usually used 155 millimeter artillery shells and a variety of mortar rounds, and occasionally TNT or plastic explosive’.Footnote 93 It is estimated that the average number of daily bomb, mortar, and grenade attacks on US troops rose from twenty-five a day in January 2004 to double that number by June of the same year.Footnote 94 There were also battles for the control of whole cities and areas of Iraq.Footnote 95 In the Al-Skeini case it is stated that, as of 30 June 2004, in the Multinational Division (South East) area of operations, the violence had included 1,050 violent attacks involving 5 anti-aircraft attacks, 12 grenade attacks, 101 attacks and 52 attempted attacks involving IEDs, 145 mortar attacks, 147 rocket propelled grenade attacks, and 535 shootings.Footnote 96
Ultimately, a broad spectrum of attacks in Iraq occurred, not only against US and Coalition military forces, but also against senior Iraqi political figures, foreign companies, Iraqi security officers and services, Iraqis collaborating with occupation authorities, critical infrastructure (such as power stations, liquid natural-gas plants, and oil installations), and symbolic targets such as the Jordanian Embassy and the UN Headquarters.Footnote 97 The ICRC headquarters in central Baghdad was also attacked with a vehicle-borne IED, resulting in twelve deaths.Footnote 98 These are not the weapons, tactics, or level of violence that law enforcement authorities are ordinarily equipped or trained to confront, although they do deal with isolated acts of terrorism.
A further indication of the warlike violence is evident in the fighting that took place in Baghdad and other cities such as Fallujah and Najaf. In Sadr City, an area of Baghdad, armed fighters from Moqtadr al-Sadr's ‘Mahdi army’ took over all eight police stations and engaged in a firefight with US forces, resulting in the deaths of a reported eight US soldiers (with fifty-one wounded) and an estimated several hundred Iraqi fighters.Footnote 99 The conflict spread to cities in southern Iraq under the control of Italian, Spanish, Polish, Ukrainian, and Salvadorian troops.Footnote 100 The US effort to take control of Sunni-dominated Fallujah started during the occupation (April 2004) and ran until November 2004. Although unconfirmed, it was reported that the number of dead ‘exceeded 600, including insurgents and civilians, and other accounts said more than 1,000 had been wounded.Footnote 101 An attack on the city in April 2004 against an estimated 500 insurgentsFootnote 102 involved 150 air strikes and destroyed between 75 and 100 buildings.Footnote 103 Although carried out after the official end of occupation, the subsequent November 2004 operation, which was, in effect, a successful completion of the previous attempts to seize Fallujah, involved attacks against 1,000 ‘hard core and two thousand part-timers’,Footnote 104 incorporating 500 air strikes, 14,000 artillery and shells, and 2,500 tank main gun rounds and significantly more destruction.Footnote 105 The twenty-one-month struggle resulted in 151 American troops killed and more than 1,000 wounded.Footnote 106 The scope of combat highlights the high levels of violence that can occur when fighting organized armed groups. The battles in Iraqi cities such as Fallujah and Najaf reflected a shift away from the traditional guerrilla operations in rural areas to ones carried out in urban terrain.Footnote 107
Although primarily, but not exclusively, a Sunni-based insurgency,Footnote 108 the organized groups engaged in combat with Coalition forces were diverse. One clash between American forces and locals in Fallujah, described as ‘more of a tribal war than a resistance force’, resulted from what was perceived to be poor treatment of the tribes by the military forces.Footnote 109 In his assessment of the Iraqi insurgency, Ahmed Hashim has identified what he describes as a remarkable number of insurgent organizations varying ‘widely in levels of skill, functional specialization, professionalism, number of personnel, modus operandi, targeting and longevity’.Footnote 110 Insurgent groups included combat cells ranging from large and well-developed organizations, referred to as squadrons, battalions, or brigades, to part-time participants.Footnote 111 Support for the insurgency came from Arab nationalists, disgruntled Muslims, foreign fighters, and Sunni extremists. The significance of the relatively small number of foreign terrorists and religious extremists was as a force multiplier, owing to their willingness to participate in operations such as suicide attacks and massive car bombs.Footnote 112 The insurgency was also supported by financial facilitators and through the proceeds of crime.Footnote 113 By the summer of 2004 it became evident that the Coalition forces were fighting a significant insurgency. With the official end of the occupation, the conflict became non-international in character, although the nature of the attacks against the governing authorities did not change. Accordingly, the Coalition developed a campaign plan that ‘called for containing the insurgent violence, building up Iraqi security forces, rebuilding economically and reaching out to the Sunni community’.Footnote 114
This recognition of the resistance as an insurgency introduces a framework within which the interface between policing and conduct of hostilities can be assessed. This includes looking at the primary role performed by the police in counter-insurgency and the complementary activities of military forces. However, the law enforcement role must also be assessed in terms of the practical limits that arise when employing police forces in high-threat situations. It is to those issues that the analysis will now turn.
Occupation, counter-insurgency, and policing
Insurgency and counter-insurgency
The connection between insurgency and occupation can be found in The U.S. Army, Marine Corps Counterinsurgency Field Manual,Footnote 115 which was developed in response to the security situation confronting US military forces in Iraq and Afghanistan. An insurgency is described as ‘an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control’.Footnote 116 Classic counter-insurgency doctrine focuses on good governance, with a primary role for policing in countering the insurgent threat. It is as applicable in a situation of occupation as it is in an internal armed conflict. This is reflected in the fact that the nature of the security threat facing state authorities (either Coalition or Iraqi) did not change when the occupation legally ended but the struggle to control the violence continued.Footnote 117
As Sir Robert Thompson stated in 1966: ‘[a]n insurgent movement is a war for the people. It stands to reason that government measures must be directed towards restoring government authority and law and order throughout the country so that control over the population can be regained and its support won’.Footnote 118 The link between governance, the maintenance of law and order, and counter-insurgency operations is reflected in contemporary military doctrine.Footnote 119 The conduct of a counter-insurgency campaign places a premium on the employment and, if necessary, development of police and internal intelligence services. Police play a particularly important role in gathering intelligence on insurgent activities.Footnote 120
The maintenance of law and order requires respect for the rule of law. The indicia of a functional legal system include the police, a law code, judicial courts, and a penal system.Footnote 121 This is generally reflected in humanitarian law, which provides for the continuance in force of the laws of the occupied territory,Footnote 122 the continued functioning of tribunalsFootnote 123 and the maintenance of the status of public officials and judges.Footnote 124 As James Spaight noted in 1911, seeing that justice is done and ‘malefactors are brought to book, is an essential condition of good government and promotes the submission of the inhabitants to the rule of the stranger’.Footnote 125 However, ‘[n]o conventional rules govern the special problem of indigenous law-enforcement agencies in occupied territories’.Footnote 126 The practice of Occupying Powers has been varied. Historically, it has included substituting their own armed forces for existing police agencies; retaining existing police forces after vetting; and even infiltrating sympathizers from the occupied territory into positions of control over existing forces.Footnote 127
Policing and the maintenance of order
In the immediate aftermath of the 2003 Iraq invasion, the Iraqi police apparently disappeared even before the occupation was legally established, in what has been described as a situation that probably could not be averted.Footnote 128 This situation was not helped by the disbandment of Iraqi security forces. Halting the looting, lawlessness, and crime therefore became the responsibility of the invading Coalition. It has been noted that ‘[t]he occupant must maintain law and order, and he is not at liberty to tolerate a situation of lawlessness and disorder in the occupied territory’.Footnote 129 Although some Iraqi police returned to duty, and programmes to train new Iraqi police forces were eventually established,Footnote 130 it was military forces that had to fill the security void. As is evident in the Iraq occupation, and in other counter-insurgencies of the twenty-first century, such as that in Afghanistan, military forces will sometimes be required to perform police-like functions such as ‘protecting key installations, controlling access to relatively secure areas, manning checkpoints, or detaining spoilers’.Footnote 131 However, this is far from ideal since they are not necessarily trained for those duties and ‘[f]oreign stability forces must serve as role models with respect to the separation of military and police forces’.Footnote 132 This reality also necessitates military forces employed on law enforcement duties being trained and equipped with appropriate weapons (including less lethal weapons such as riot-control agents). They must further be required to use appropriate levels of force applicable to the performance of such duties.
The challenges of maintaining law and order in situations of occupation
At the same time, there are limits to how police forces can and should be employed. This is important in assessing the applicability of a law enforcement normative framework. As demonstrated by the Iraq occupation, and the occupations of World War II before it, international armed conflict can continue throughout the period of occupation. Even during the long occupation of the West Bank and Gaza, the Second Intifada that started in 2000 demonstrated that hostilities at the armed conflict end of the spectrum could re-ignite after periods of relative calm or low levels of violence.Footnote 133
The level of violence may not be consistent in intensity or scale across the territory. In what has been referred to as a ‘mosaic’ war, it is often difficult to confine the insurgent activity of a resistance movement to one area or period of time. For instance, insurgents may use ‘guerrilla tactics in one province while executing terrorist attacks and an urban approach in another’.Footnote 134 The resistance may be organized in a similar manner to a conventional force and may seek to control territory or a city. However, attacks are often made by a guerrilla force that seeks to hide among the population, resulting in what has been called a ‘war amongst the people’.Footnote 135 The scale of the violence is often far beyond that associated with normal criminal activity. Attacks and defensive operations conducted by organized armed groups armed with mortars, suicide bombs, car bombs, IEDs, anti-tank rockets, and automatic weapons are not readily amenable to being dealt with by a police force.
The security continuum can include war, insurgency, subversion (i.e. terrorism or sabotage), disorder (i.e. strikes, demonstrations, mass rallies), and normal crime, all of which can occur concurrently,Footnote 136 which makes ‘determining the police role very difficult’.Footnote 137 The police are not necessarily the best trained or equipped to address this full spectrum of security threats. Generally, police functions can be divided into six categories: uniformed general duties police, non-uniformed criminal investigators, covert intelligence, border police, and stability police units for controlling strikes and demonstrations as well as protecting installations and personnel.Footnote 138 The first two categories are viewed as ‘core police’ duties that are fundamental for demonstrating that the ‘government can provide security and justice in response to the needs of individuals’.Footnote 139 The core police, along with emergency medical personnel, fire-fighters, and humanitarian workers, are often most at risk from insurgent attack.Footnote 140 The result is that there must be co-ordination between the military forces performing the counter-insurgency role and police forces focused on protecting the population. However, it has been suggested that ‘[i]f proactive force is required, it should be done by the military as a means to support core policing, and not as a substitute for it’.Footnote 141
Furthermore there is the issue of the degree to which the civilian population is willing to co-operate. Notwithstanding the fact that the occupier is dealing with enemy civilians, the nature of a counter-insurgency is such that ‘in a guerrilla struggle one must seek their sympathy and support’.Footnote 142 As was evident in the Iraq occupation, the failure to maintain law and order can create animosity towards the Occupying Power and contribute to a broader insurgency,Footnote 143 although it is recognized that the motives for the Iraq insurgency were multi-faceted.Footnote 144 Even if reliance on a narrow interpretation of the law discussed above means that the legal obligation to maintain law and order does not commence until occupation is established, there remains a strong moral and operational advantage in limiting criminal activity where feasible. In any event, an occupation of territory will not always be unpopular in the eyes of the inhabitants. This security situation may be even more complex where the occupation ends up being a transformative one, with various factions within the territory vying for political control.Footnote 145
The legitimacy of belligerent acts and the implication of the local police
Another factor that can complicate the role of the Occupying Power in maintaining law and order is the issue of the interaction between foreign security forces and those of the occupied territory. Article 51 of the Fourth Geneva Convention bans the forced participation of protected persons in the armed or auxiliary services of the Occupying Power or their being compelled to ‘undertake any work which would involve them in the obligation of taking part in military operations’.Footnote 146 However, the Convention does not specifically make reference to indigenous police forces and their interface with the ongoing hostilities in the context of law enforcement. In addressing the complex security situation created by armed resistance, the Geneva Convention IV Commentary does seek to provide some guidance. That commentary indicates that police personnel of the occupied territory ‘cannot under any circumstances be required to participate in measures aimed at opposing legitimate belligerent acts, whether commenced by armed forces hostile to the Occupying Power, by corps of volunteers or by organized resistance movements’.Footnote 147 Presumably, those personnel could agree to do so voluntarily. The Commentary also notes that, owing to the criminal nature of acts occurring outside those contemplated by Article 4 of the Third Geneva Convention, it appears that ‘the Occupying Power is entitled to require the local police to take part in tracing and punishing hostile acts’,Footnote 148 whatever the motivation of the actors.
A key factor for deciding to involve the local police therefore appears to be the lawfulness of the activities carried out by insurgents who cannot claim legitimate belligerent status. While terms such as ‘combatant’ or ‘fighter’ are sometimes used in a generic senseFootnote 149 when referring to ‘unprivileged belligerents’,Footnote 150 the use of such terminology does not change the result that direct participation in hostilities without the benefit of lawful combatant status can lead to prosecution.Footnote 151 In respect of the law governing occupation, the recognition that an Occupying Power may enact penal provisions and take measures ‘to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication’ reflects the unlawful nature of most resistance activities.Footnote 152
This linking of the legitimacy of participants in hostilities and the enforcement of the law means that police forces of the occupied territory can lawfully be employed against insurgents in all but the most exceptional of circumstances, since the likelihood of a resistance movement meeting the requirements of Geneva Convention III has long been viewed as very remote.Footnote 153 In this respect, requirements such as carrying arms openly, or ‘having a fixed distinctive sign recognizable at a distance’, can be particularly difficult to meet for organized groups operating within occupied territory, thereby potentially criminalizing their activity. Even where parts of uniforms and other symbols have been worn, that, in itself, has not necessarily proved sufficient to have the members of a resistance group viewed as lawful belligerents.Footnote 154 Such participation in hostilities has long been viewed as ‘criminal’ in nature, leading to it being subjected to police attention as well as military activity. The reliance on local police forces to maintain order during occupation can be controversial, particularly as it can put them in opposition to groups and others who are their fellow nationals. As the Geneva Convention IV Commentary notes, internal laws and regulations should be issued to define those duties, so that the police can operate ‘with complete loyalty without having to fear the consequences, should the terms of the Convention be liable to be interpreted later in a manner prejudicial to them’.Footnote 155
‘Belonging to a Party to the Conflict’
Another way in which the status of the members of an organized resistance movement as lawful belligerents may become an issue concerns whether the armed group ‘belongs’ to a Party to the Conflict.Footnote 156 It has been suggested that hostilities between an Occupying Power and organized armed groups that do not ‘belong’ to a Party to the Conflict could be considered non-international in character. Under that approach, the threshold for engaging such groups would depend upon active hostilities reaching a certain level associated with the Tadić criterion for conflicts not of an international character (involving organized armed groups and a certain intensity of conflict).Footnote 157 However, the threshold for non-international armed conflict is open to interpretation. For example, in Juan Carlos Abella v. Argentina Footnote 158 the Inter-American Commission on Human Rights applied humanitarian law norms in assessing hostilities involving forty-two armed individuals attacking government forces over a thirty-hour period.Footnote 159 This suggests either different criteria than that contemplated by the jurisprudence of the ICTY, or the application of a relatively low threshold when considering the necessary intensity and duration of violence.Footnote 160 In this respect, to the extent that criteria for assessing the organization of an armed group – such as the existence of a command structure, disciplinary rules and mechanism within the armed group, the existence of a headquarters, logistics, the planning and conduct of operations, and so forth – are relied on,Footnote 161 those criteria need to be applied contextually. This is particularly evident in situations of occupation, where organized armed groups conducting network-centric guerrilla warfare normally operate in a less hierarchical and more decentralized fashion than conventional forces that have a traditional headquarters, formal command structure, and the like.Footnote 162 One of the challenges in assessing thresholds for internal conflict is the reality that ‘[d]istinguishing between international and non-international conflicts is particularly difficult in contemporary conflict situations, which often present aspects of both’.Footnote 163 As a result, there is ‘no agreed-upon mechanism for definitively characterizing situations of violence’.Footnote 164
While the theory of applying non-international armed conflict thresholds may offer some attraction as a means to limit the violence during occupation when there are sporadic or renewed hostilities, it would have limited relevance to the violent occupations of World War II or Iraq, given the scope, level, and intensity of those conflicts.Footnote 165 In addition, there remains the question of whether a non-international armed conflict threshold would apply as a matter of law, or simply provide a practical means of identifying renewed hostilities as a matter of policy. The least controversial position is that the threshold can be of use from a practical perspective. In any event, with respect to the employment of police forces for dealing with the insurgents, applying the law of non-international armed conflict would actually highlight the ‘criminal’ nature of the insurgent activities. This is because the legitimate status of the members of the organized armed group would no longer be an issue: the category of prisoner of war is not available in non-international armed conflict.Footnote 166
Furthermore, viewing hostilities between resistance movements and an Occupying Power as a non-international armed conflict raises a number of additional practical and legal complexities. It introduces a body of law: that governing non-international armed conflict, which is not as clearly proscribed in treaty law as the law applicable to international armed conflict. And, as will be discussed, suggesting that the hostilities between the Occupying Power and certain organized armed groups could be viewed as a non-international armed conflict is also inconsistent with traditional and long-standing interpretations of the law.
Hostilities conducted by an Occupying Power are carried out in the context of an international armed conflict. A state of occupation only exists during such conflict. The occupier is not the ‘sovereign’ of the territory, but rather is carrying out obligations imposed on it by the law governing international armed conflict. The resistance may include a variety of organized armed groups, as well as individuals who are taking a direct part in hostilities, or otherwise acting against the security interests of the occupier. In this respect, resistance during violent occupation often involves a complex interrelationship between numerous armed groups, suggesting co-operation and co-belligerency rather than operating under one command or even for the political power whose authority over the territory has been displaced by the occupation. While not all organized armed groups resisting occupation are linked to a state, particularly in the strict formal sense established under the Third Geneva Convention for the narrow purpose of determining prisoner-of-war status, this does not make the hostilities in fact or in law any less international in character. Relying on prisoner-of-war status criteria to categorize the conflict appears to introduce an unnecessary element of formalism and to overreach the scope of the Third Convention. Members of some resistance groups fighting during occupation may get prisoner-of war-status because they belong to a Party to the Conflict, but that is the extent of the effect of those provisions of the Convention. The provisions do not speak to either the nature or categorization of the conflict itself. Further, in practical terms there may be no difference in organization or tactics of the variously backed organized armed groups engaged in the conflict, regardless of their affiliation. These groups, often acting as co-belligerents, fight the same Occupying Power, which attained that status at law as a result of the ongoing international armed conflict. It is difficult to see what advantage is gained in seeking to subdivide this conflict into different categories in what is an integrated operational and security environment involving protection of the same population.
As was demonstrated in World War II, armed resistance groups can serve diverse ranges of competing political interests, but at the same time, for a variety of reasons, act together against a common enemy.Footnote 167 This was seen again during the 2003–2004 Iraq Occupation.Footnote 168 However, this does not change the overarching law governing the activities of the Occupying Power, including the conduct of hostilities. As was indicated in the 1948 Hostage case, in respect of countering diverse organized resistance movements in Yugoslavia and Greece, the actions of the Occupying Power in ‘preserving order, punishing crime, and protecting lives and property within the occupied territory’ are ‘definitely limited by recognized rules of international law, particularly the Hague Regulations of 1907’.Footnote 169 Although the conflict in Iraq was also subject to the provisions of the later 1949 Geneva Conventions, those Conventions did not change the basic premise of the Hostage case judgment.Footnote 170
It should be of particular concern that claiming that the law governing internal conflicts readily applies to occupation may call into question the broader applicability of the Fourth Geneva Convention. This may particularly arise in situations where a majority or all of the resistance forces have little or no connection to the displaced regime. It also introduces additional levels of complexity, with the Occupying Power being asked to attempt a simultaneous application of the law governing international armed conflict with its internal counterpart. Such situations can occur; however, from the viewpoint of a practical and consistent application of the law they should be avoided whenever possible. There is also the potential for multiple separate non-international armed conflicts occurring where there are numerous different armed groups engaged in hostilities. Moreover, in focusing on the legitimacy of organized armed groups the theory fails to address the situation where individual civilians take a direct part in hostilities. It is not clear whether they would be considered to be participants in an international or a non-international armed conflict.
While it is the international law of armed conflict that applies to the occupier, this does not mean that non-international armed conflicts can never occur in occupied territory. As the Tadić decision contemplates, an armed conflict may occur when two organized armed groups fight one another. In the context of an occupation, such fighting between these groups could be seen as a conflict not of an international character. However, this is the exception rather than the rule. In any event, as has been noted, suggesting that a conflict is non-international in character reinforces the argument that police forces have a role to play in dealing with such illegal activity. While not necessarily encompassing traditional crimes such as theft or drug trafficking, participation by non-state actors in internal conflicts has long been viewed by states in particular as ‘criminal’ in nature. Acts that are carried out contrary to the security interests of the state in such conflicts may be treated as crimes. This inevitably points towards involvement of the criminal justice system, of which policing is such an integral part.
In the final analysis, hostilities conducted against the Occupying Power, including those carried out by a diverse range of organized armed groups, fit comfortably within the law governing international armed conflicts, including occupation law. It is difficult to see how any limited benefits gained from introducing the law governing non-international armed conflict outweigh the application of the better-developed and articulated law applicable to international conflicts. Overall this self-imposed interpretive complexity is neither necessary nor desirable from the broader perspective of protecting the inhabitants of the occupied territory.
The primacy of the police function
In respect of the performance of a policing function ‘occupation authorities, being responsible for maintaining law and order, are within their rights in claiming cooperation of the police’ regarding the suppression of criminal activity.Footnote 171 While it is open for public officials such as police to abstain from filling their functions for reasons of conscience,Footnote 172 the Geneva Convention IV Commentary recognizes that it is the moral duty for such officials ‘to remain at their posts in the interests of their fellow citizens’.Footnote 173 Ultimately, their employability may depend on the degree to which they are willing, able, and capable of engaging in police duties that could involve using force against insurgents. However, as occurred in Iraq, the establishment of a new governing authority – and with it security forces – increases the likelihood that the police forces become engaged in the counter-insurgency campaign.
It is clear that policing remains of fundamental importance during occupation, both in terms of general law enforcement and as part of a security campaign designed to counter the illegal activities of insurgent groups. However, separating the law enforcement role from the conduct of hostilities aspect of an insurgency is neither factually nor legally simple. As discussed above, factors, such as the intensity of the hostilities and the organization of the parties to the conflict might provide useful practical indicators of insurgent activity.Footnote 174
If an ‘organized resistance movement’ meeting the criteria of Article 4 of the Third Geneva Convention was threatening the Occupying Power, then identification of the threat could be significantly easier.Footnote 175 However, as happened in Iraq, it is more likely that organized groups that do not meet the requirements of lawful belligerency and civilians taking a direct part in hostilities will carry out insurgent activities.Footnote 176 Further, police will often find themselves on the frontlines of the conflict owing to their integration into local communities, and, through the assignment of roles such as defending property and personnel, subject to attack.
To be consistent with traditional counter-insurgency doctrine, operational planning should rely on the ‘police primacy principle’.Footnote 177 That principle recognizes that a key objective is to reduce military involvement and increase local police capacity. This is so that primary personnel deployed among the population to deal with the insurgency are trained to use minimum force and expected to exercise individual discretion.Footnote 178 However, insurgent activity can impact on what the police can do as ‘[i]nsecurity indicates both a need for police and an impediment to their effectiveness’.Footnote 179 It is also evident that the nature and scale of the threat posed by ongoing hostilities, as well as the organization, training, traditional role, and equipment of police forces, means that they are not the only security forces engaged either in law enforcement or in countering the insurgency during an occupation. Military forces of the Occupying Power will be required to participate in hostilities, fill gaps in the policing capacity, and provide support to police operations.Footnote 180 The issue raised above in the section ‘Occupation and the rule of law’ remains of how the legal frameworks governing the use of force in law enforcement and the conduct of hostilities in this complex security environment relate to one another. Having established the factual reality of ‘violent’ occupation and the significant challenges facing security forces, it is to that issue that the analysis will now turn.
Legal frameworks governing the use of force in hostilities and policing
One commentator has suggested that ‘[p]ublic order is restored through police operations, which are governed by domestic law and international human rights, and not through military operations governed by IHL on the conduct of hostilities’.Footnote 181 However, that assessment was tempered with the acknowledgement that continuing organized armed resistance makes the distinction between the conduct of hostilities and police operations directed against criminal activity more difficult to establish.Footnote 182 While a preference for a clearly bifurcated system of normative frameworks to govern police and military operations in occupied territories is understandable, the complex security situation requires a more integrated and nuanced approach. In this respect it is not clear how the maintenance of ‘public order and safety’ can be limited to police operations, either factually or legally. Public order is a broader concept than ‘law and order’,Footnote 183 which itself has been interpreted to be more than simply the enforcement of criminal law. Maintaining ‘law and order’ can involve preventing and responding to crimes, controlling public demonstrations, disarming individuals or groups, and preventing serious crimes such as genocide, war crimes, and crimes against humanity.Footnote 184 As has been noted, unless members of an organized resistance movement have attained the status of lawful belligerents, their activities can be subject to criminal prosecution. It is therefore necessary to look at the normative frameworks of human rights and humanitarian law, which govern security operations, to determine their relative roles in maintaining security. This will be done by setting out the basic differences between the two frameworks, assessing factors impacting on their relative applicability (such as exercising control over territory), and looking at the application of the lex specialis rule.
The use of force under the human rights and humanitarian normative frameworks
The normative framework governing law enforcement addresses the use of force in a fundamentally different manner than the conduct of hostilities. Law enforcement, based on a human rights normative framework, seeks to limit the use of force to situations of absolute necessity.Footnote 185 A ‘shoot to kill’ policy is strictly avoided.Footnote 186 Accordingly, deadly force is only employed when it is strictly unavoidable.Footnote 187 There is a clear preference demonstrated for capturing rather than killing a suspect.Footnote 188 The use of force is governed by the principles of necessity and proportionality, with firearms
permitted in self-defense or the defense of others against the imminent threat of death or serious injury; to prevent a particularly serious crime involving grave threat to life; to arrest a person presenting such a danger and resisting their authority; or to prevent his or her escape.Footnote 189
In terms of accountability, the case law in the European Court of Human Rights extends the requirement for an investigation beyond ‘all suspected cases of extra-legal, arbitrary and summary executions’, as set out in the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary ExecutionsFootnote 190 to the broader requirement of having an ‘effective official investigation when individuals have been killed as a result of the use of force’.Footnote 191 The form of investigation is not limited to a criminal inquiry; however, it must be independent of state authorities and comply with universal standards. The investigation can include a review not only of the security personnel involved but also of issues such as training, planning, rules of engagement, and orders.Footnote 192
In contrast, humanitarian law recognizes that the use of deadly force is an inherent part of the conduct of hostilities. Lawful combatants receive immunity for killing carried out in accordance with the law. Members of state security forces are specifically trained, ordered, and expected to use such force, although attacks must be limited to valid military objectives (either persons or objects).Footnote 193 Lawful targets during international armed conflict, which encompasses periods of occupation, include members of the regular armed forces of states, irregular armed forces belonging to a party to the conflict, and civilians taking a direct part in hostilities.Footnote 194 Those using force must distinguish between lawful targets and civilians not taking an active part in hostilities and civilian property. However, under the humanitarian law concept of ‘proportionality’, collateral death, injury, or damage may result owing to their proximity to lawful targets.Footnote 195
International humanitarian law also has an accountability structure, although, since it is not focused on preventing a ‘shoot to kill’ policy, it does not require an investigation whenever a person is killed. Rather, investigations deal primarily with alleged breaches of international criminal and domestic law such as war crimes, crimes against humanity, or breaches of military law. For example, in the 1998 Rome Statute of the International Criminal Court, the war crime relating to collateral injury or death is established when there is the ‘intentional launching of an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.Footnote 196 The initiation of a criminal or other investigation would only be required, as a matter of law, if there were a reasonable suspicion that such excessive collateral injury, death, or destruction had occurred. Depending upon the circumstances, and the level of information available to a commander, an initial fact-finding inquiry may be directed in order to determine whether a criminal or other investigation is necessary.Footnote 197 Of course, this would not preclude the ordering of an investigation, as a matter of policy, whenever any injury, death, or damage occurs, as can happen in the context of certain operations such as counter-insurgencies.
In addition, administrative or operational investigations may be ordered for a variety of operational and policy reasons: for example, under circumstances where a weapons system does not perform as expected and strikes an unintended target, personnel do not follow established procedures, or a pattern of misconduct emerges that is of concern to a military commander.Footnote 198 Liability can be incurred for individual acts or omissions and as a result of command or superior responsibility.Footnote 199 While the human rights accountability structure has been traditionally viewed as better developed and utilized, there has been continued application of national humanitarian-law-based investigations and an increasing involvement of international criminal courts.Footnote 200 The operation of this humanitarian law accountability process is often masked internationally by its reliance on domestic courts and tribunals for the prosecution of war crimes and investigations of alleged wrongdoing.Footnote 201
Occupied territory and ‘control’
The application of the normative frameworks governing the conduct of hostilities and law enforcement in respect of operations undertaken to maintain public order is affected by the degree of control that the Occupying Power exercises over the territory where the resistance is operating. The issue of control is relevant in two ways. First, there is the question of whether the Occupying Power is exercising sufficient control over the territory to conclude that it is occupied. If it is not occupied, then the obligation to maintain public order under the Fourth Geneva Convention does not apply as a matter of treaty law, although this does not mean that such forces will not be tasked to intervene to suppress criminal acts that they observe during the conduct of operations. Second, there is the question of control over the area where operations are being conducted by security forces. In this respect, even where there is a requirement to maintain public order, the ability to conduct law enforcement operations may be considerably diminished by the prevailing security situation.
Should an organized group, or the armed forces of the other party, regain control of the territory, then operations against the group by the occupier would, in effect, be the same as a re-invasion.Footnote 202 In this respect an analogy has been drawn between occupation and blockade. Like a blockade, an occupation cannot merely exist on paper.Footnote 203 However, temporary dispossession of territory does not necessarily mean that the occupation has ended. A key issue appears to be whether the Occupying Power can send security forces to ensure that its authority is effective. As has been noted, ‘[s]hould the Occupying Power manage to display resilience in the face of temporary adversity, it would not lose effective control’.Footnote 204 Further, it appears that pockets of resistance would not render the whole territory ‘unoccupied’, as ‘the presence of isolated areas in which that [legitimate] authority is still functioning does not affect the reality of the occupation if those areas are effectively cut off from the rest of the occupied territory’.Footnote 205
During the Iraq conflict, the periodic control exercised by insurgent forces over cities or parts of cities, such as in Fallujah and Najaf, did not mean that the Coalition forces had been ousted as the Occupying Power in those locations.Footnote 206 However, a sufficient loss of control appears to have occurred in some instances in Russia during World War IIFootnote 207 and perhaps in parts of Yugoslavia as well.Footnote 208 This view that mere physical presence of an armed group does not normally oust the occupier also supports the narrower interpretation of occupation by which simply placing ‘boots on the ground’ during a patrol, raid, or invasion does not create an occupation at law.Footnote 209 If that were the case, then organized resistance movements conducting the patrols, raids, or other operations could theoretically easily extinguish the obligations of the occupier.
Barring a complete ousting of the Occupying Power, the treaty obligation to maintain order still exits, despite a temporary loss of control over an area. However, law enforcement operations are unlikely to be a viable option for maintaining order in those areas, either on the ground or at law. That is because the conduct of law enforcement requires a very significant level of control over the security situation being addressed. Policing is effective because of the degree of control that can be exercised by state authorities, including by the use of undercover operatives, by electronic surveillance, and through the collection of human intelligence. In this respect, domestic security agencies are integrated into the lives of citizens as a result of the high levels of control that a state ordinarily enjoys.
For example, it is the ability to geographically isolate a suspect (who is normally lightly armed, if at all) and then use an overwhelming physical presence and the threat of force to effect an arrest, or otherwise resolve the situation, which makes policing so effective. In contrast, it is the inability to exercise sufficient control over an area that often makes the use of military force to remove the security threat the most realistic option for dealing with insurgents. Even when charting a unique approach to targeting law by incorporating law enforcement norms in the 2006 Public Committee Against Torture in Israel v. Government of Israel case, the Israeli Supreme Court identified two factors that could impact on its stated preference for arrest, investigation, and trial. Those factors were the risk to the lives of soldiers and civilians, and the issue of control.Footnote 210 While the court indicated a law enforcement response might be particularly practical during belligerent occupation, it was in respect of a situation ‘in which the army controls the area where the operation is taking place’.Footnote 211 For example, a commander may be confronted with a situation where a military force potentially has to fight its way into, or away from, an objective where a capture is being considered. A force may also be under risk of ambush or attack while conducting the operation. In those situations, a commander would have to weigh the feasibility of the operation, considering both the importance of the enforcement action and the attendant risk to the security forces and uninvolved civilians. Such limits for the application of a law enforcement response during occupation are also reflective of the training, equipment, and ordinary role of police forces.
However, even where sufficient control is exercised to effectively carry out law enforcement functions, this does not mean that hostilities will not occur in that territory. Although some countries develop units with special capabilities,Footnote 212 and sometimes local police are trained and employed as ‘little soldiers’,Footnote 213 ‘[u]ltimately police contribute to counterinsurgency by winning the allegiance of the population: the military contributes … by eliminating threats of violence’.Footnote 214 In very practical terms, RPGs (hand-held anti-tank grenade launchers), mortars, vehicle-borne or suicide bombs, and IEDs are not the weapons of ordinary criminals controllable through a law enforcement response. It is reported that a SAM-7 ground to air missile was used by insurgents to down an attack helicopter in April 2004.Footnote 215 Similarly, the use of RPGs to shoot down helicopters in Somalia,Footnote 216 Afghanistan,Footnote 217 and IraqFootnote 218 provided clear examples of the significant risk attendant in dealing with armed groups equipped with such weapons of war. There are limits to what police and other law enforcement authorities can do without being turned into soldiers conducting hostilities. The nature of the threat, the capabilities of the security forces, the degree of control exercised over territory, and the normative rules governing the use of force are inevitably linked.
The principle of lex specialis
Given the availability of two normative frameworks to govern the use of force, and the complex security situation often prevalent during an occupation, the question remains as to how they apply to controlling the use of force. Certainly, the principle of lex specialis provides a starting point for addressing this issue. However, there is an increasingly complex discussion developing over what prima facie appears to be a fairly straightforward application of the lex specialis principle presented by the International Court of Justice in the Nuclear Weapons case.Footnote 219
In what can be termed an interpretive ‘struggle’, the lex specialis principle has been said to be ‘descriptively misleading, vague in meaning, and of little practical use in application’.Footnote 220 One interpretation has been described as broadly exclusionary in nature, seeing ‘the specialty of IHL operating at a very general level, so that IHL would replace IHRL [international human rights law] altogether in times of armed conflict’.Footnote 221 Attributed to states such as the United States and Israel, this approach has been called ‘radical’.Footnote 222 It has been indicated that a more correct interpretation of lex specialis is one applied on a case-by-case basis to certain individual rights in situations where there is an actual conflict such that, where a norm cannot be applied without violating another, ‘the special norm of IHL should prevail’.Footnote 223 However, it is also suggested that what can be used is the lex specialis completat legi generali principle, where both branches of the law are applied simultaneously, such that human rights norms ‘have to be interpreted in light of IHL norms’.Footnote 224 Reflecting this interpretive uncertainty, Françoise Hampson has stated, in regard to the lex specialis principle, that ‘[i]t is not clear whether this means only that the special prevails over the general, or whether it means that the former actually displaces the latter’.Footnote 225 Another analysis reaches the conclusion that international humanitarian and human rights treaties can ordinarily be reconciled, but that there will be instances where that will not occur, leading to a political choice as to which of the conflicting norms will be given priority.Footnote 226
An approach allowing for the application of human rights law, even when IHL applies, has been to interpret lex specialis as a ‘rule governing conflicting norms’.Footnote 227 This interpretation gives ‘precedence to the rule that is most adapted and tailored to the specific situation’.Footnote 228 In this respect, ‘the most important indicators are the precision and clarity of a rule and its adaptation to the particular circumstances of the case’.Footnote 229 However, this ‘conflicting norms’ approach has to be reconciled with the specific wording in the Nuclear Weapons case, which characterized humanitarian law as a tool for interpreting human rights law. One way of 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 the approach of the Court’.Footnote 230 However, it is not evident how an omission in that case, assuming that there was one, would actually constitute a reversal of the specific language found in two previous judgments by the same court, particularly given the importance of those decisions.Footnote 231 Perhaps the most apt explanation of the lex specialis principle in respect of the law of occupation is that it acts as a ‘prism filtering human rights during armed conflict’.Footnote 232
However, a more fundamental question needs to be asked regarding the humanitarian law obligation to maintain order in occupied territory as to whether the issue even needs to be looked at as a ‘conflict’ of human rights norms. In this respect, humanitarian and human rights law govern the same activity: the policing of territory. When a ‘conflicting norms’ approach is suggested, in respect of either internal armed conflictsFootnote 233 or occupation,Footnote 234 the legal paradigm applicable to law enforcement is almost invariably suggested to be human rights law. Such an interpretation is reinforced by a view that, since Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention do not provide any detail regarding the use of potentially lethal force, it is human rights law that ‘would govern the use of force by the OP [Occupying Power] with respect to the OP's entitlement and obligation to restore and maintain public order and safety’.Footnote 235 In effect, while the obligation is found in international humanitarian treaty law, the actual maintenance of order would have to be put into operation by the application of international human rights law.
To the extent that this argument is based on the view that humanitarian law lacks specific treaty provisions governing how order is to be maintained, it might even be argued that the principle of lex specialis, as set out in the International Court of Justice cases, would not have to be applied. Human rights law would then apply as the general law, without the lex specialis principle even having to be considered. However, there cannot be a conflict of norms unless the lex specialis of humanitarian law specifically governs law enforcement activities in occupied territory. In this respect, the suggestion that there is a conflict is an acknowledgment that humanitarian law does in a substantive way govern the maintenance of order in occupied territory. The question is how and to what extent that occurs. These are fundamental issues regarding the application of the lex specialis principle, however that principle might be interpreted.
Any conclusion that human rights law exclusively governs policing in occupied territory would have to address the fact that the Hague Regulations, the Geneva Conventions, and Additional Protocol I incorporate substantive rights, such as the right to life, upon which the law enforcement model is fundamentally based.Footnote 236 There is a parallelism of content regarding rights such as the right to life; prohibition against torture and cruel, inhuman, or degrading treatment; due process; the prohibition on discrimination; the protection of family honour and rights; and a prohibition against arbitrary detention.Footnote 237 Further, it is significant that the recognition of human rights for inhabitants of occupied territories, as well as the obligation under Article 43 of the Hague Regulations to restore and ensure public order and safety, pre-dated the substantive development of treaty-based human rights law at the end of World War II.Footnote 238 Such norms, including those relating to law enforcement, have been and remain part of ‘the general principles of law recognized by civilized nations’.Footnote 239 In addition, those rights have continued to be recognized and integrated into humanitarian treaty and customary international law since that time. As a result, the normative rules for carrying out policing or other law enforcement activity during occupation are not uniquely found in human rights law as a governing legal framework. They are based on human rights norms that are a fundamental part of both bodies of law. In this respect, it has been noted that the Nuclear Weapons case discussed the application of the lex specialis principle in the context of norms rather than governing legal regimes.Footnote 240 Both human rights norms and the unique norms applicable to the conduct of hostilities are part of humanitarian law.
These human rights norms are also an integral part of customary international humanitarian law. As the ICRC Customary Law Study indicates, the prohibition against murder, the requirement for humane treatment of detained persons, the prohibition against torture and other cruel or inhuman treatment, trial affording all essential judicial guarantees, and other protections relevant to law enforcement are norms of customary humanitarian law in international armed conflict.Footnote 241 This application of customary IHL is as important as its customary human rights law counterpart in ensuring that there are no gaps in the law.
In respect of treaty law, Article 75 of Additional Protocol I was clearly influenced by human rights documents such as the 1948 Universal Declaration on Human RightsFootnote 242 and the 1966 International Covenant on Civil and Political Rights (ICCPR).Footnote 243 For example, the Additional Protocol I Commentary states in respect of Article 75: ‘[m]ost of the guarantees listed in sub-paragraphs (a)–(j) [related to due process] are contained in the Conventions and the Covenant on Human Rights’, although a difference is that, unlike the Covenant, the Additional Protocol provision is not subject to derogation.Footnote 244 Protection is provided against discrimination; violence to life, health, or physical or mental well-being; torture and humiliating and degrading treatment; and threats to carry out such acts.Footnote 245 And provision is made for trial before an impartial and regularly constituted court.Footnote 246 As one commentator has indicated, the post-World War II relationship between IHL and human rights law ‘is expressed in the adoption of major human rights principles in Article 75 AP I’.Footnote 247 It has been noted that ‘states did not include other specific guarantees provided for in the ICCPR within either Protocol, such as the right to liberty of movement and freedom of expression and association’.Footnote 248 However, the list of incorporated rights is lengthy, and those rights have a particular relevance to law enforcement.
As a result, the States Parties to Additional Protocol I, and those that accept that Article 75 of that Protocol reflects customary international law, are obligated to apply these human rights norms as an integral part of their compliance with IHL.Footnote 249 This obligation exists in occupied territories and in other military operations such as during patrols, raids, and invasions, although, as has already been discussed, the ability to do so will still be dependent upon factors such as whether the Occupying Power exercises sufficient control over the territory to conduct law enforcement operations. In this respect it should be noted that a major non-signatory to the Protocols, the United States, indicated in March 2011 that it will, out of a sense of ‘legal obligation’, apply the norms of Article 75 in international armed conflict.Footnote 250 While not a statement acknowledging these norms as customary IHL,Footnote 251 the language of obligation raises the issue of ‘opinio juris’. In addition, it had been noted by an official from a previous administration that the United States did ‘regard the provisions of article 75 as an articulation of the safeguards to which all persons in the hands of the enemy are entitled’.Footnote 252
The complex relationship between ‘human rights law and the laws of war is not just a simple confrontation between the lex generalis of human rights and the lex specialis of the laws of war’.Footnote 253 International human rights law covers areas that are not included in humanitarian law.Footnote 254 However, there are also significant and important areas of overlap. There does not always need to be an interpretive struggle seeking to apply one body of law in preference to the other. As has been noted, the Wall case addressed the issue of simultaneous application when it was noted that there are rights that ‘may be matters of both these branches of international law’.Footnote 255 For example, the right to individual self-defence, normally assessed according to human right norms, is recognized under humanitarian law as a matter of both treatyFootnote 256 and customary international law.Footnote 257
The same can be said about the rights of inhabitants of the occupied territory regarding their right to life, and other rights associated with law enforcement. While the right to life is interpreted differently when targeting combatants, members of organized armed groups, or persons taking a direct part in hostilities, it is not in respect of civilians not actively engaged in the conflict.Footnote 258 Therefore, it is human rights standards that would be applied in assessing any use of force against them by security forces. In this respect, the application of these human rights norms recognized in humanitarian law substantively matches that reflected in human rights law.
Given this incorporation of these human rights norms, it can be argued that there is limited potential for a ‘conflict of norms’ between the two bodies of law.Footnote 259 To the extent that there is a conflict, it is most likely to arise where an attempt is made to apply human-rights-based law enforcement norms to a situation of hostilities, such as targeting, or to introduce humanitarian law norms to ordinary policing. The question would have to be asked in each case why it would be necessary or legally appropriate to do so.Footnote 260
In applying a complementary approach, if any gaps exist, they can be addressed by the application of human rights law, as a matter of either treaty or customary law.Footnote 261 Any court or tribunal interpreting the human rights norms guaranteed by IHL can look to the same ‘soft law’ instruments outlining the principles governing law enforcement that are applied under the human rights accountability regime.Footnote 262 In Prosecutor v. Kunarac, the Trial Chamber of the ICTY noted that ‘[b]ecause of the paucity of precedent in the field of international humanitarian law, the Tribunal has, on many occasions, had recourse to instruments and practices developed in the field of human rights law’.Footnote 263 Further, the decisions of domestic courts and regional human rights bodies assessing law enforcement activities under human rights law can also be considered. As has been noted, one of the sources of international law is ‘the general principles of law recognized by civilized nations’, such as those appearing in municipal law.Footnote 264 An assessment of the general principles of law enforcement applied in domestic jurisdictions, whether as a matter of common law or as one of civil law, also has the advantage of enhancing the identification of universal standards of conduct.
There are numerous distinct advantages to applying human-rights-based law enforcement norms as part of IHL rather than as a discrete application of human rights law. First, whether these norms are applied as a matter of treaty or customary international humanitarian law, the difficult debate over the extra-territorial application of human rights treaty law can be prevented. Armed conflict may occur in what has been termed the ‘area of war’, comprising the territories of the parties to the conflict as defined by national boundaries, the high seas, and the exclusive economic zone, although military operations may more narrowly occur in operational zones or theatres of war.Footnote 265 During such conflict, some provisions of IHL may have broad application to the entire territory of the Parties to a Conflict and ‘not just to the vicinity of actual hostilities’.Footnote 266 This would include the law of occupation with its provisions governing the maintenance of public order, which extend to the entire territory that is occupied.Footnote 267 As a result, human rights norms incorporated under humanitarian law would have application to the occupied territory even if the Occupying Power took the position that its human rights law obligations did not have extra-territorial application to such territory.Footnote 268
Second, it avoids the risks inherent in adopting an exclusionary approach for either body of law. Advocating the exclusive application of humanitarian law without acknowledging the norms governing the use of force in a law enforcement context potentially puts peaceful civilians at risk, since the conduct of hostilities norms (i.e. precautions in targetingFootnote 269) are not designed for policing. Conversely, a unique application of human rights law will be challenged to deal with the elevated levels of threat inherent in the violence that can occur during occupation. Failure to address those threats put not only the security forces at risk but also the civilians whom they are obligated to protect.
Third, while there are regional human-rights-treaty-based bodies that deal with breaches of human rights committed by security forces in occupied territory, their jurisdiction is restricted to certain states.Footnote 270 This limitation can be addressed by relying on mechanisms for the application of human rights norms through the enforcement of humanitarian law, since that law has a more universal application to countries not subject to oversight by those bodies. This broad applicability of IHL means that some states will be subject to both the jurisdiction of regional human rights bodies and the parallel frameworks of accountability under humanitarian law. This is not problematic, as both are dealing with issues of law enforcement, and it potentially significantly enhances accountability.Footnote 271
Fourth, in terms of accountability, dealing with the misapplication of force as a breach of humanitarian law means that the incident is amenable to being handled as a ‘war crime’.Footnote 272 A violation of human rights law would probably have to be dealt with as a potential crime against humanity. That offence has additional criteria for culpability relating to the act being widespread or systemic that could be limiting in its application.Footnote 273
Finally, recognizing that human rights norms applicable to law enforcement in occupied territory are found within the body of IHL provides a more holistic approach towards applying the law. This allows for easier integration and socialization within the doctrine and training of military forces tasked with maintaining public order, whether it is ordinary policing or countering the threats posed by an insurgent force. Ultimately, respect for the broad range of legal rights applicable in wartime is enhanced, and greater protection is provided to the civilian population.
Resolving practical issues
It is also important to be clear what the recognition of human-rights-based law enforcement norms within humanitarian law will not do. It will not simplify the interface between law enforcement and the conduct of hostilities during belligerent occupation. These challenges remain the same whether human rights norms are applied as a matter of international humanitarian law or human rights law. The threats to the security of the occupier and the inhabitants of the territory can be organized, diverse, complex, and extremely violent, particularly because of the organization of the armed resistance groups. Those threats can extend far beyond those normally associated with law enforcement. In such situations, force used by security forces is governed by legal norms linked to the threat being posed. The maintenance of public order and safety cannot be effectively addressed by viewing the situation as being exclusively one of law enforcement or the conduct of hostilities, nor can such exclusivity exist in the application of the governing norms.
Where the threat is from organized resistance movements meeting the legal criteria for combatant status, from other involved organized armed groups, or from civilians taking a direct part in hostilities, the conduct of hostility norms governing the use of force will apply. Attacks can only be directed against lawful military objectives.Footnote 274 Where insecurity is caused by civilians not involved in the hostilities but engaged in ‘riots, isolated and sporadic acts of violence and acts of a similar nature’,Footnote 275 then human-rights-based law enforcement norms govern the activities of the security forces. In practical terms, this division of application of norms is also largely reflected in the different doctrine, training, and equipment of police forces and military forces.Footnote 276
Both police and military forces may be employed in situations governed by law enforcement or hostilities norms and can be confronted with threats emanating from either end of the conflict spectrum. Many of those threats will comfortably fit within the normative structure of law enforcement or conduct of hostilities respectively. However, in line with the complexity of the security situation, the two normative frameworks will at times intersect and even overlap. The threat may initially appear to be one arising in a law enforcement context, but may in reality be related to the ongoing armed conflict. For example, as occurred in Iraq, security personnel may be employed on checkpoint duty, which is often viewed as a law enforcement function. Those security personnel, civilian or military, must be trained and required to use force associated with law enforcement in order to deal with persons who are not members of organized armed groups or civilians taking a direct part in hostilities. In those situations, force must be used in the last resort, proportionately and primarily in self-defence.
However, such duties can be contextually nuanced. The checkpoint may be guarding a military base or access to an area of military operations rather than being a traffic-style vehicle checkpoint. While the default position will be to apply law enforcement norms, the escalation in the use of force associated with those norms (verbal and visual warnings, warning shots, etc.) can act as a discriminator for screening out and identifying more serious threats than those posed by ordinary criminals. In this respect, the necessity to operate in this merged security environment where insurgents hide among the population lends itself to Rules of Engagement (ROE) that reflect both human rights and humanitarian norms rather than using separate ROE cards for law enforcement and conduct of hostilities respectively. Once it becomes evident that the threat is emanating from a member of an organized armed group or a civilian taking a direct part in hostilities, such as by means of a vehicle-borne IED, then the conduct of hostilities framework would apply at law. In that situation, the use of force is not limited by law enforcement, although such norms would continue to govern the use of force against civilians who are not direct participants in hostilities.Footnote 277 When the soldier or police personnel reasonably believeFootnote 278 that the threat is directly linked to those engaged in hostilities, the force used is governed by humanitarian law principles such as distinction, proportionality, and not causing unnecessary suffering or superfluous injury.
In reaching that belief, the soldier is entitled to consider a number of factors, including available intelligence, feasible steps taken to warn the oncoming vehicle, the reaction or failure to react by the driver of the vehicle, the location of the checkpoint, what is being guarded (if anything), and the propensity of insurgents to use that method of warfare. The situation may result in force being applied in the same way as might have occurred under the law enforcement construct when reacting to a threat in self-defence. In this situation, the soldier may only have time to act in the face of an immediate threat. However, that will not always be the case, and the force permitted, at law, to counter an IED or suicide bomb by members of organized armed groups or a civilian taking a direct part in hostilities is governed by conduct of hostilities norms. For example, the soldier may be aware from information provided by aerial surveillance, human intelligence, other observation posts and checkpoints, or perhaps even the observation of certain tactics and procedures, that an attack is about to take place. That soldier does not have to wait until the attack is imminent, or the attacker is physically in close proximity and ready to set off explosives, before taking action to remove the threat. In addressing that threat, the soldier can use force governed by conduct of hostilities norms.
The setting off of bombs in crowded markets and urban areas during armed conflict is a significant threat to civilians and security personnel. It has been equated to acts of warfare.Footnote 279 That threat can be met with overwhelming force and not solely the type of proportionate force contemplated by law enforcement norms. It is not the activity such as maintaining a checkpoint that is the overriding determinant of which norms apply. When the threat is presented by members of the organized resistance movement or civilians taking a direct part in hostilities, the response can be governed by conduct of hostilities norms regardless of the activity being performed by the security forces at the time. This same blending of hostilities and law enforcement can arise where insurgents fire from among a crowd of rioters.
However, this does not mean that the response will always be an extremely violent one. A soldier's response when guarding a checkpoint or dealing with rioters is not restricted to law enforcement norms when attacked by insurgents. However, the use of deadly force against the insurgents in such situations can carry with it the potential for significant collateral civilian casualties. As happened in Iraq, such collateral deaths or injuries to civilians can have an adverse impact on the counter-insurgency campaign.Footnote 280 As a result, while humanitarian law may provide for a robust response and even permit collateral civilian casualties, commanders may choose in the ROE, as a matter of policy, to limit the force that can be used.Footnote 281
A further example of the necessary nuanced application of the law is that, even when force is considered under humanitarian normative rules, the result may not be a ‘kinetic’ one, such as that involving the use of firearms, artillery, or aerial delivered ordnance. The law, and therefore any resulting force, must be contextually applied. As occurred in Fallujah, the tactical situation may be such that the conflict between the security forces seeking to enter a city and an organized armed group dug into defensive positions resisting that operation could result in the use of both direct and indirect fire (artillery or air power).Footnote 282 In another circumstance, such as when targeting an unarmed low-level member of an armed group hiding in a built-up area, a commander may determine, after applying the targeting precautions, that the relative military advantage to be gained from a kinetic attack is outweighed by the potential collateral death of, injury to, or damage to civilians.Footnote 283 In seeking to avoid or minimize the collateral impact on civilians, attempting to capture the individual may be the legally appropriate option under the circumstances. However, a more important target may change the military advantage to be gained from conducting an operation, thereby providing justification for the strike once appropriate precautions are taken.
Given the complexity of the situation on the ground and the diversity of the threats inherent in a belligerent occupation, it is inevitable that there will be both interface and overlap in the application of the two legal regimes. The challenge for courts, tribunals, state legal advisers (both military and civilian), and legal analysts will be to avoid formalistic assessments of the law that do not address the complexity of the threat and the capabilities or tactical limitations of the security forces involved. However, what is clear is that the maintenance of public order and safety in occupied territory under IHL is primarily and predominantly a law enforcement function. This is the situation regarding ordinary dealings with civilians in the occupied territory,Footnote 284 and extends to law enforcement activity that is an essential part of a counter-insurgency effort designed to counter criminal acts by insurgent groups. In this respect, the Occupying Power is in a similar position to that of the displaced government if it was dealing with an insurgency during an internal conflict. The activity performed by either police or military forces must conform with the widely accepted human rights norms governing law enforcement, regardless of whether a humanitarian or a human rights law framework is applied to determine accountability for the use of any force. It points to a default position of applying human-rights-based law enforcement norms in meeting the Occupying Power's humanitarian law mandate to maintain order, unless the security situation engages the conduct of hostilities framework.Footnote 285
Conclusion
As this analysis has demonstrated, belligerent occupation – such as occurred in Iraq from 2003 to 2004 – can present a complex and violent security challenge to the Occupying Power. The obligation to restore and maintain public order and safety, as far as possible, has long made the Occupying Power responsible for policing the inhabitants of the occupied territory. At the same time, the Occupying Power may be engaged in hostilities with those wishing to participate in the ongoing international armed conflict. Inevitably, the maintenance of security involves an integration, and at times an overlap, of effort between law enforcement and military forces. This arises from the requirement to police the population and the predominate role that police forces play in countering an insurgency.
Human rights norms associated with law enforcement activity, such as the right to life, are an integral part of IHL. This is consistent with the obligations on the Occupying Power to maintain order established in that body of law. These rights are also applicable under human rights law as a matter of treaty or customary international law. As a result, the two bodies of law substantively overlap in terms of the normative structure placed over security forces engaged in carrying out law enforcement duties. There are numerous advantages in applying that protection under the framework of humanitarian law. This includes the existence of parallel normative frameworks and attendant accountability structures that enhance the protection provided to the civilian population. That said, regardless of whether human rights norms are applied as a matter of humanitarian law or of human rights law, there will remain limits on the scope of each body of law in effectively addressing the complex security situation during occupation. In this respect, the norms applicable to the threat being faced will ultimately govern the force permitted at law.
