Elementos del currículo

of course, use the provisions of the Hague Regulations or of the Fourth Geneva Convention specific to situations of occupation, including those allowing for security measures, but, in addition, it needs to observe applicable human rights, both customary and conventional. However, the application of human rights law must take into account the specificities of occu- pation. In particular, those human rights that require a more long-term approach, such as social, economic and cultural rights,92 _{remain, of course, under the condition of the possible.}

IV. CONCLUSION: INTERACTION OF INTERNATIONAL

HUMANITARIAN LAW AND HUMAN RIGHTS LAW

AND THE USE OF FORCE IN OCCUPIED TERRITORIES

As Adam Roberts has suggested “the law of occupation remains both viable and useful, and has proved reasonably flexible in practice.”93 _{The interrelationship of international humanitarian law} and human rights law severely tests the flexibility and adaptability of occupation law.

This paper suggests the following provisional responses to the questions asked in paragraphs 2 and 3 of the introductory questionnaire:

The level of control is relevant to the question of the applicability of the law of occupation, the law on the conduct of hostilities, and, finally, to the proportionality analysis to be made under human rights law if applicable. Effective control and a well-functioning law enforce- ment regime exclude the applicability of norms on the use of force, whether under the jus ad bellum or under the law on the conduct of hostilities. However, the moment effectiveness wanes, an armed attack occurs, and armed conflict is renewed, those two branches of law become applicable again. In addition, the occupying power is obliged to apply human rights law if applicable, but human rights law needs to take account of the degree of control in the application of the proportionality principle and of the relativity of the optimization clauses in some human rights treaties.

In general, human rights law will be superseded by the law of occupation, including Article 43 of the Hague Regulations. If international humanitarian law is applicable – and this is a big “if” with regard to effective occupation – the standards of human rights law will, as a rule, not apply, but may inform the application of international humanitarian law regarding precautions and after-the- fact investigations. Thus, international humanitarian law and human rights law may well comple- ment each other, but their different conditions of applicability need to be strenuously observed. Otherwise, all sides are faced with an amalgam of norms that allow for arbitrary pick-and-choose approaches – in other words, that are in danger of not being applied at all.

89 _{P. Alston et al, “The competence of the UN Human Rights Council and its special procedures in relation to armed conflicts:}

Extra-judicial executions in the ‘War on Terror’,” European Journal of International Law,19 (2008), 183 at 192; in the same vein, see Koskenniemi, Fragmentation of International Law , para. 96. (interpreting the ICJ Nuclear Weapons opinion, p. 240, para. 25)

90 _{Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Adv. Op., ICJ Rep. 2004, 136, at 144-177,}

paras 95-101; Nuclear Weapons, p. 240, para. 25. See also Sassòli, “The international legal framework for stability operations,” p. 203; Droege, ‘Elective affinities?’ p. 539.

91 _{Sassòli, “The international legal framework for stability operations,” p. 206.}

92 _{See Article 2, para. 1 of the International Covenant on Economic, Social and Cultural Rights.} 93 _{Roberts, “Transformative military occupation,” p. 580.}

APPENDIX 2

AGENDA AND GUIDING QUESTIONS AIMED

AT FRAMING THE DISCUSSIONS

DAY ONE

Working session 1: Delimiting the legal framework applicable to the use of force in occupied territory

To what extent and under what conditions is the occupying power entitled to use force in occupied territory?

What are the legal regimes applicable to the use of force in occupied territory? Does occupation law make any assumptions about the legal regime governing the use of force in occupied territory? Is human rights law (HRL) the legal framework to be used as a matter of course in relation to the maintenance of public order and safety in occupied territory? To what extent must the occupying power comply with HRL standards on the use of force despite the general applicability of international humanitarian law (IHL), including the law governing the conduct of hostilities?

Does the level of control exercised in occupied territory affect the identification of the legal regime and its content? How can one evaluate the transition from the law enforcement model to the ‘conduct-of- hostilities’ regime and vice versa? What are the rules applicable in “grey zones”? Is there any presump- tion of applicability of one regime over the other in such situations?

Working session 2: The use of force to maintain public order and safety in occupied territory

What does the maintenance of public order and safety mean for the purposes of IHL, in particular occupation law? Can the maintenance of public order and safety result in the application of IHL rules related to the conduct of hostilities? What are the permissible measures (and means/methods) that an occupying power may employ in order to maintain law and order in occupied territory?

Do the circumstances surrounding the use of force in occupied territory (“calm” occupation vs. occupa- tion subject to armed resistance) determine the default legal regime? Do effective control and the presence of a well-functioning law enforcement apparatus necessarily lead to the precedence of the HRL regime? What are the relevant legal instruments, provisions and principles in this respect? To what extent, if any, can/must the interpretation and application of the standards of necessity, proportionality and precau- tion underpinning the law enforcement model be adapted to the specific circumstances of belligerent occupation?

Are the conditions and procedures governing the resort to lethal force in exercise of the occupying power’s law enforcement authority in occupied territory different (stricter or more relaxed) than those governing the territorial/domestic use of lethal force in peacetime?

Working session 3: The use of force in activities related to the conduct of hostilities in occupied territory: Conditions for applying the ‘conduct-of-hostilities’ model

In what circumstances is the use of force in occupied territory governed by the rules and principles of IHL on the conduct of hostilities?

Does one need to see proof of a resumption of large-scale hostilities in order to apply the ‘conduct-of- hostilities’ model? If yes, when can it be said that hostilities have broken out anew? What if hostilities are only sporadic? Is the applicability of the ‘conduct-of-hostilities’ model geographically and temporally limited?

Can the occupying power, on its own initiative, trigger the applicability of the ‘conduct-of-hostilities’ model during a “calm” occupation?

To what extent, if any, can/must the interpretation and application of the general rules governing the conduct of hostilities in international armed conflict be adapted to the specific circumstances prevailing in occupied territory?

Working session 4: The use of force in activities related to the conduct of hostilities in occupied ter- ritory: Limitations of the ‘conduct-of-hostilities’ model

Is the use of lethal force in occupied territory against members of organized resistance movements au- tomatically lawful or subject to certain conditions?

In particular, is there an obligation to capture rather than kill the enemy in occupied territory? If the obligation to capture rather than kill is accepted, what are the conditions for its implementation? In other words, to what extent does the risk incurred by the occupying forces through an attempt to cap- ture rather than kill enter the equation? How does the existence of effective control affect this concept of “capture rather than kill” during the conduct of hostilities in occupied territory?

Can the occupying power’s general responsibility for the welfare of the population under occupation influence its ability to conduct hostilities in occupied territory?

DAY TWO

Working session 5: The interaction between the law enforcement and ‘conduct-of-hostilities’ models in occupied territory

What is the relevant legal regime governing an operation that is both a police operation against an indi- vidual violating the laws in force in occupied territory (including measures promulgated by the occu- pying power) and a military operation against a legitimate military target under IHL? In this regard, how can one concretely distinguish between policing functions and combat activities in occupied terri- tory? How does the occupying power’s right to ensure its own security relate to its obligation to maintain law and order in occupied territory?

What is the legal framework when the law enforcement and ‘conduct-of-hostilities’ models overlap? In such situations, would it be useful to resort to an approach blending these legal regimes? What are the merits and potential challenges of such blended approaches to controlling the use of force in occupied territory? In the light of the Israeli Supreme Court’s “targeted killing” case, can it be said that the HRL regime may be used in occupied territory to reduce the occupying power’s freedom to act under IHL? Does the ‘conduct-of-hostilities’ model always prevail in situations of overlap as a matter of lex specialis? How can we reconcile law enforcement standards on the use of force with the fact that occupation, as a sub-category of international armed conflict, permits the use of force under IHL governing the conduct of hostilities? Can armed resistance against the occupying power be treated as a matter of law enforcement?

Working session 6: The interaction between the law enforcement and ‘conduct-of-hostilities’ models in occupied territory (continued)

What is the legal regime applicable to “undercover operations” in occupied territory? Can a police op- eration suddenly turn into a military one and vice versa? If so, under what circumstances? What would be the legal framework of reference for such a sequence of actions? Does the prohibition against perfidy under IHL mean that the occupying power cannot resort to undercover operations aimed at capturing, injuring or killing members of organized armed groups in occupied territory?

APPENDIX 3

LIST OF PARTICIPANTS

1. Prof. G. Abi-Saab, Graduate Institute of International and Development Studies, Geneva 2. Prof. P.G. Alston, New York University/Special Rapporteur of United Nations

3. Prof. J. Cerone, New England School of Law

4. Prof. L. Doswald Beck, Graduate Institute of International and Development Studies, Geneva/ Geneva Academy of International Humanitarian Law and Human Rights, Geneva

5. Prof. R. Kolb, University of Geneva

6. Dr N. Lubell, Irish Centre for Human Rights, National University of Ireland, Galway 7. Dr B. Oswald, University of Melbourne

8. Prof. A. Paulus, Georg-August University of Göttingen 9. Prof. A. Roberts, University of Oxford

10. Prof. M. Sassolì, University of Geneva

11. Dr I. Seiderman, Senior Legal and Policy Adviser, International Commission of Jurists, Geneva 12. Col D. O. Stewart, Director of the Military Department, International Institute of Humanitarian

Law, San Remo

13. Brig. Gen. K. Watkin, Judge Advocate General, Ministry of Defence, Canada 14. Dr M. Zwanenburg, Senior Legal Adviser, Ministry of Defence, The Netherlands

15. Prof. Y. Sandoz, Geneva Academy of International Humanitarian Law and Human Rights, Member of the ICRC

16. Dr P. Spoerri, Director for International Law and Cooperation within the Movement, ICRC 17. Mr L. Colassis, Deputy Head of the Legal Division, ICRC

18. Dr J.F. Queguiner, Head of Unit, Legal Division, ICRC 19. Ms. J. Pejic, Legal Adviser, ICRC

20. Dr S. Vité, Legal Adviser, ICRC 21. Dr T. Ferraro, Legal Adviser, ICRC

MISSION

The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. The ICRC also endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Established in 1863, the ICRC is at the origin of the Geneva Conventions and the International Red Cross and Red Crescent Movement. It directs and coordinates the international activities conducted by the Movement in armed conflicts and other situations of violence.