Maintaining Law and Order during Occupation

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Maintaining Law and Order during Occupation: Breaking the Normative Chains

Kenneth Watkin
Canada-Office of the Judge Advocate General



Israel Law Review, Vol. 41, pp. 175-200, 2008
Hebrew University International Law Research Paper No. 16-08

Abstract:
Notwithstanding of the considerable body international law dealing with occupation, identification of the normative standards against which law and order is maintained continues to challenge the international community. That challenge is centered on the existence of an unclear and often awkward interface between international humanitarian law and international human rights law.

Policing represents the normal means by which order is maintained in society. In occupied territory the preference should be for maintaining order by means of properly trained police forces seeking to apply international human rights law standards. However, the security threat is often not limited to criminal activity with there being striking similarities between attempting to maintain order in occupied territory and battling insurgencies in internal armed conflicts. This then points to the application of international humanitarian law to govern the use of force.

Despite ongoing disagreement about which paradigm should be applied the question remains whether the proponents of the two frameworks can break free of their normative chains to craft a realistic approach to maintaining law and order. Suggested approaches include the situation based approach of applying the appropriate body of law to specific fact situations and the blended approach of borrowing from each normative regime to address the unique situations confronting security forces. Which ever approach is adopted the emphasis must remain on the right to life to ensure true respect for the rule of law is maintained.

papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1293302_code597900.pdf?abstractid=1293302&mirid=1

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Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities

Tristan Ferraro



Israel Law Review, Vol. 41, pp. 331-357, 2008
Hebrew University International Law Research Paper No. 20-08

Abstract:
A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporary forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power

papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1293303_code597900.pdf?abstractid=1293303&mirid=2