The last subject considered by the experts was the legal framework applicable to operations that were both a police operation against an individual violating the laws in force in occupied terri- tory (including measures promulgated by the occupying power) and a military operation against a legitimate military target under IHL. The participants were clearly divided on this question. Some claimed that the law enforcement model would prevail in such grey areas; others were clearly inclined to promote the application of the ‘conduct-of-hostilities’ model as a matter of law. In the end, the majority of experts favoured the prevalence of the ‘conduct-of-hostilities’ model in such circumstances.
One argument put forward in support of this position was that when the occupying forces were dealing with enemies who had not yet been subdued they would generally interpret any use of force against opposing parties on the basis of the law governing the conduct of hostilities and certainly not on that of the law enforcement model. This was explained largely by the fact that the occupying power would be unlikely to address threats as individualized criminal activities, but would take a much broader approach based on the wider threats posed to its forces. Given that these wider threats would usually originate in organized armed groups, the experts declared, the ‘conduct-of-hostilities’ model would establish itself as the only one that was relevant in such circumstances. In fact, detecting and dealing with such threats would likely be beyond the occupying power’s law enforcement abili- ties, which would point towards the use of the ‘conduct-of-hostilities’ model. Therefore, any prep- aration, planning and execution of military operations in occupied territory designed to counter these wider threats would be approached solely from the IHL and ‘conduct-of-hostilities’ perspective. In this regard, some experts drew attention to the importance of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL for identifying individuals and organized armed groups constituting such wider threats and justifying resort to the ‘conduct-of-hostilities’ model.24 One expert pointed out that the law enforcement and ‘conduct-of-hostilities’ models could overlap when the occupying power carried out preventive action aimed at countering the ongoing constitu- tion of armed groups. In such instances, the degree of organization reached by hostile individuals posing a threat to the occupier would have a significant bearing on identifying the model applicable. Therefore, force could not always be used within the framework of the law governing the conduct of hostilities when the occupying power was dealing with armed groups not yet fully constituted. Some experts advocated a case-by-case approach in such circumstances; they also stressed the importance
of gathering intelligence on such groups in order to decide whether the threats emanating from them could be dealt with under the law enforcement model or whether it required the more permis- sible legal framework provided by the ‘conduct-of-hostilities’ model. Eventually, the experts agreed that the prevailing facts and the nature of the context would determine the model to be applied to the use of force in occupied territory; they said that this would be even truer in situations of overlap. Therefore, the circumstances in which the threats against the occupying power arose would also be decisive in identifying the model applicable.
However, two experts challenged the prevalence of the ‘conduct-of-hostilities’ model in situations of overlap. They claimed that there was no legal basis under IHL for treating the law governing the con- duct of hostilities as a matter of lex specialis in such circumstances. According to these experts, the provisions of human rights law governing law enforcement operations would provide a sufficiently flexible framework as well as practical solutions for coping with the threats posed by individuals who were simultaneously criminals under the legislation applicable in occupied territory and legitimate targets within the meaning of the law governing the conduct of hostilities. A particular conten- tion of theirs was that human rights law was flexible enough for its norms to be construed within the context of the belligerency inherent to occupation and thus to justify resorting to force based on more relaxed conditions than in peacetime. Consequently, these participants argued, the law enforcement model was more suitable for dealing with this situation of overlap, as it perfectly fitted the reactive mode under which occupying forces would often be operating in occupied territory. The use of force in this reactive approach would be based mainly on the concept of escalation of force, which also characterized the law enforcement regime.
Two other experts proposed a different method for determining the model applicable in situations of overlap. They said that the degree of control the occupying power had over the circumstances surrounding a military operation, as well as its control over the place where that operation would take place, could be useful criteria for determining whether the rules pertaining to law enforcement or those governing the conduct of hostilities would apply as a matter of lex specialis. Control over the circumstances of the operation and over the areas in question would trigger application of the law enforcement model. Therefore, when the occupying forces conducting a specific operation are not excessively concerned about having to deal with other members of the organized armed group, meaning that additional military means would not be required to make the operation a success, the law enforcement model would become applicable. On the other hand, when the occupying forces expect to be militarily challenged by fighters from organized armed groups, then the operation should be carried out within the framework of the ‘conduct-of-hostilities’ model. This double layer of control (control over the operation within the broader concept of effective control over the occu- pied territory) was well received by the other experts, except one who challenged the practicality of the proposal. Thus, level of control within the broader concept of effective control over the occupied territory was accepted as an important criterion in situations of overlap and regarded as a workable option for determining the model applicable.
Some experts pointed out that once applicable, the ‘conduct-of-hostilities’ model would not neces- sarily sanction a “shoot to kill” policy against persons who were both criminals according to the legislation in place in occupied territory and legitimate targets under IHL. In this regard, some experts asserted that the force to be used against them should never exceed that which was necessary to accomplish the legitimate military objective of achieving their complete submission. It was there- fore argued that the principles of military necessity and humanity would play a restraining function with regard to the use of force, in particular when the occupying forces controlled the area and the circumstances in which its military operations were conducted. Another expert remarked that such restraints would become decisive when the occupying forces operated against selected individuals in situations similar to peacetime policing. It follows, therefore, that in areas over which the occupying power had less control or where the insurgents were able to conduct well-structured operations, the principles of military necessity and humanity would be less likely to restrict the use of force against legitimate targets beyond what is already required by the specific provisions of IHL. However, a few experts challenged these views on the restrictive role played by the principles of military necessity and humanity on the grounds that it would not reflect lex lata.
As the meeting drew to a close, the experts took up the question of undercover operations. Some of them held that undercover operations exemplified the intricacies of situations of overlap; they
pointed out that occupying powers often had recourse to such operations in order to deal with per- sons whose conduct was covered by both the law enforcement and the ‘conduct-of-hostilities’ models. One expert asserted that “undercover operations” was not a concept used under IHL and that car- rying out such operations, particularly in occupied territory, was not illegal per se. In fact, he said, IHL contained no specific references to undercover operations; but it also did not specifically forbid the occupying power from resorting to undercover operations in occupied territory. However, atten- tion was drawn to the fact that such operations raised an important issue: the legality of occupying forces’ wearing civilian dress during their military operations. It was pointed out that even though IHL did not impose on the occupying forces an explicit duty to wear uniforms at all times, it obliged them to distinguish themselves from the civilian population during an attack and during the mili- tary operations preparatory to an attack. Deliberately not wearing uniforms could thus amount to feigning civilian status, which, when done in order to kill, injure or capture an adversary, would constitute perfidy, prohibited under IHL. The experts emphasized the importance of classifying the nature of the operations during which force was resorted to and of determining whether such under- cover operations were conducted under the law enforcement or the ‘conduct-of-hostilities’ model. Another expert observed that undercover operations had too often been associated with the pro- hibitions against perfidy and treachery. Consequently, some people were too ready to conclude that undercover operations in occupied territory were unlawful, a position that had no basis under IHL. However, it was argued that labelling the occupying power’s activities as undercover operations said very little about whether they conformed to IHL. Rather, it was necessary to examine the circum- stances in which these operations take place together with the specific legal standards pertaining to them. Thus, merely referring to something as an undercover operation would not obviate the need to examine the nature and purpose of the acts carried out and the attendant circumstances.
The experts agreed that it could be persuasively argued that activities that qualified as law enforce- ment – such as ‘search-and-arrest’ operations – would not, for the purposes of the ‘conduct-of-hos- tilities’ model, qualify as military operations, during which combatants were obliged to distinguish themselves. Conducting law enforcement operations in civilian dress thus did not constitute perfidy, as the arrest of a civilian in occupied territory was not tantamount to capturing an enemy. Attention was drawn to the fact that police officers often wear civilian clothes when engaged in activities such as intelligence gathering and ‘search-and-arrest’ operations. Therefore, there was a good case for arguing that when carrying out such law enforcement missions in occupied territory, the occupying forces could do so in civilian dress, without being required to distinguish themselves and without committing perfidy while doing so.
Some experts also contended that, to be credible, claims that undercover operations were unlawful should be placed within a broad analytical framework governing the relationship between the ‘con- duct-of-hostilities’ and law enforcement models. They considered this to be the crux of the issue, since undercover operations lay at the heart of the separation between the law enforcement and ‘conduct-of-hostilities’ models and could result not only in the arrest of a civilian in breach of the occupier’s legislation in occupied territory, but also in the capture of an enemy.
Faced with this dilemma, one expert praised the flexibility offered by law enforcement with regard to undercover operations. He emphasized that this model would better equip the occupying power to deal with threats posed in occupied territory, as members of its forces would not be obliged to wear uniforms and would have recourse to means and methods otherwise prohibited in the course of military operations connected to the conduct of hostilities. Another participant proposed a less stringent dichotomy between the law enforcement and ‘conduct-of-hostilities’ models in relation to undercover operations, one that would allow the occupying power to make use of them even when conducting operations connected to the conduct of hostilities. This was contested by other experts. They declared that the current legal framework governing undercover operations remained necessary to prevent the adoption of a pick-and-choose approach, which could lead to a loosening of the conditions under which lethal force could be used, and thus ultimately to a diminution of the protection granted by IHL to the civilian population of the occupied territory.