1 Roberts, Adam, ‘What is a military occupation?’, in British Year Book of International Law, Vol. 55, No. 1, 1984, p. 261Google Scholar. See also Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, Princeton, 1993, p. 4Google Scholar, and Fox, Gregory H., Humanitarian Occupation, Cambridge University Press, Cambridge, 2008, p. 4CrossRefGoogle Scholar, where he suggests there is a form of humanitarian occupation which is defined as ‘the assumption of governing authority over a state or a portion thereof, by an international actor for the express purpose of creating a liberal, democratic order’.

2 A. Roberts, above note 1, pp. 292–293.

3 Ibid., p. 250; E. Benvenisti, above note 1, p. 4.

4 A. Roberts, above note 1, pp. 261–262. He notes that occupation bellica is more or less synonymous with the term ‘occupation of enemy territory’, having the characteristics of being carried out by a belligerent state on the territory of an enemy state, during the course of an armed conflict and before a general armistice agreement is concluded. See also Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 31–32CrossRefGoogle Scholar.

5 Y. Dinstein, above note 4, p. 1.

6 Ibid.

7 See Gasser, Hans-Peter, ‘Protection of the civilian population’, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 2nd edition, Oxford University Press, Oxford, 2008, p. 276Google Scholar.

8 E. Benvenisti, above note 1, p. 5.

9 Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention Respecting the Laws and Customs of War on Land (hereafter Hague Regulations), 18 October 1907, Art. 42.

10 The four Conventions are: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (hereafter the Third Geneva Convention or GC III); and Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. (hereafter the Fourth Geneva Convention or GC IV).

11 Hague Regulations, Art. 43. Y. Dinstein, above note 4, p. 89. Dinstein notes that the official French text of Article 43 refers to ‘l'ordre et la vie publics’ (public order and life) and, as a result, the interpretation of the word ‘safety’ in the English text must be viewed in that context. See also E. Benvenisti, above note 1, p. 7, n. 1; and Sassòli, Marco, ‘Legislation and maintenance of public order and civil life by Occupying Powers’, in European Journal of International Law, Vol. 16, No. 4, 2005, p. 663CrossRefGoogle Scholar.

12 GC IV, Art. 64, para. 3.

13 Ibid., Arts. 27 and 47 et seq.

14 A. Roberts, above note 1, p. 256.

15 Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (hereafter Geneva Convention IV Commentary), ICRC, Geneva, 1958, Art. 6, p. 60Google Scholar.

16 Green, Leslie C., The Contemporary Law of Armed Conflict, 3rd edition, Manchester University Press, Manchester, 2008, p. 285Google Scholar; Y. Dinstein, above note 4, pp. 38–42. Oppenheim, Lassa, International Law: A Treatise, ed. Hersch Lauterpacht, Longmans, Green and Co., London, 1952, p. 434Google Scholar, wrote: ‘Now it is certain that mere invasion is not occupation. … Occupation is invasion plus taking possession of enemy country … an occupant sets up some kind of administration, whereas the mere invader does not’.

17 L. C. Green, above note 16, p. 258.

18 Glahn, Gerhard von, The Occupation of Enemy Territory, Lund Press, Inc., Minneapolis, 1957, p. 28Google Scholar.

19 United States of America v. Willem List, et al., Case No. 7, 19 February 1948, Trials of War Criminals Before the Nuremburg Military Tribunals, Vol. 11, Government Printing Office, Washington, 1950 (hereafter Hostage case).

20 Ibid., p. 1243.

21 International Court of Justice (ICJ), Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, p. 231, para. 177, available at: http://www.icj-cij.org/docket/files/116/10455.pdf (last visited 26 September 2011) (hereafter Congo case).

22 Ibid., p. 230, para. 173.

23 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, available at: http://www.icj-cij.org/docket/files/131/1671.pdf (last visited 18 October 2011) (hereafter Wall case).

24 Zwanenburg, Marten, ‘Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation’, in International Review of the Red Cross, Vol. 86, No. 856, December 2004, p. 749Google Scholar.

25 Dinstein, Yoram, ‘International law of belligerent occupation and human rights’, in Israel Year Book of Human Rights, Vol. 8, 1978, pp. 105–106Google Scholar; E. Benvenisti, above note 1, pp. 5–6.

26 E. Benvenisti, above note 1, p. 5.

27 Geneva Convention IV Commentary, above note 15, Art. 6, p. 60.

28 Ibid.

29 ICTY, Prosector v. Mladen Naletilic and Vinko Martinovic, Judgment, Case No. IT-98-34-T, 31 March 2003, pp. 74–75, paras. 219–223. However, the court applied the ‘narrow interpretation’ to its analysis of Article 42 regarding the determination of the status of occupation and a ‘broad interpretation’ to its assessment of Article 43 of the Hague Regulations in respect of ‘individuals’.

30 See A. Roberts, above note 1, p. 256.

31 Y. Dinstein, above note 4, pp. 38–42. See also M. Zwanenburg, above note 24, p. 749, where, in respect of the Prosecutor v. Naletilic decision, he suggests that the Trial Chamber's interpretation of Geneva Convention IV ‘is questionable’.

32 See Tristan Ferraro, in this edition.

33 However, see H.-P. Gasser, above note 7, pp. 276–277, Rule 528, para. 3. It is suggested there that a list of provisions found in Part II of GC IV (Articles 13–26) would apply in contested areas regarding the general protection of the population.

34 Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Vol. I, Cambridge University Press, Cambridge, 2005 (hereafter ICRC Customary Law Study)CrossRefGoogle Scholar.

35 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature December 12, 1977 1125 UNTS 3 (hereafter Additional Protocol I or AP I).

36 Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, para. 3015 (hereafter Additional Protocol I Commentary), which states: ‘[t]he protections which follow from Article 75 apply above all to those who cannot lay claim to application of the Conventions or to their application in full …’.

37 Marko Milanovic, ‘Article 75 AP I and US opinio juris’, in European Journal of International Law: Talk!, 9 March 2011, available at: http://www.ejiltalk.org/article-75-ap-i-and-us-opinio-juris/ (last visited February 2012), for a discussion of the customary law status of AP I, Art. 75.

38 See Brownlie, Ian, The Rule of Law in International Affairs, Martinus Nijhoff Publishers, The Hague, 1998, pp. 213–214Google Scholar. The elements of the rule of law are indicated to be that the exercise of power by officials must be based on authority conferred by law; law must conform to standards of substantial and procedural justice; the executive, the legislature, and the judicial functions must be separated; the judiciary should not be controlled by the executive; and all legal persons are subject to the law.

39 E. Benvenisti, above note 1, p. 9.

40 Ibid., p. 105. See also Dinstein, Yoram, ‘The international law of inter-state wars and human rights’, in Israel Yearbook of Human Rights, Vol. 7, 1977, p. 149Google Scholar, where he states: ‘The human rights of civilians in time of war – mainly in occupied territories – are incorporated in the Hague Regulations and in the [F]ourth Geneva Convention’.

41 See Hague Regulations, Art. 46: ‘Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated’.

42 See GC IV, Art. 27, para. 1 and Arts. 48 et seq. Art. 27, para. 1 states: ‘Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity’. As the Geneva Convention IV Commentary, above note 15, Art. 27, p. 201, notes in respect of the right to life: ‘[u]nlike Article 46 of the Hague Regulations the present Article does not mention it specifically. It is nevertheless obvious that this right is implied, for without it there would be no reason for the other rights mentioned’.

43 For example, as AP I, Art. 75 states, in part: ‘75. 2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental wellbeing of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation.’

44 Geneva Convention IV Commentary, above note 15, Art. 2, p. 21.

45 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226, p. 240, para. 25, available at: http://www.icj-cij.org/docket/files/95/7495.pdf (last visited February 2012) (hereafter Nuclear Weapons case).

46 Wall case, above note 23, pp. 45–46, para. 105.

47 Ibid., at p. 178, para. 106.

48 Lubell, Noam, Extraterritorial Use of Force Against Non-state Actors, Oxford University Press, Oxford, 2010, pp. 197–198CrossRefGoogle Scholar, discussing the United States position; Dennis, Michael J., ‘Application of human rights treaties extraterritorially in times of armed conflict and military occupation’, in American Journal of International Law, Vol. 99, No. 1, 2005, p. 119CrossRefGoogle Scholar.

49 Condron, Major Sean (ed.), Operational Law Handbook, Judge Advocate General's Legal Center and School, Charlottesville, VA, 2011, p. 45Google Scholar, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2011.pdf (last visited February 2012), which notes that ‘[t]he Restatement makes no qualification as to where the violation might occur, or against whom it may be directed. Therefore, it is the CIL [customary international law] status of certain human rights that renders respect for them a legal obligation on the part of U.S. forces conducting operations outside the United States, and not the fact that they may be reflected in treaties ratified by the United States. Practitioners must nevertheless look to specific treaties, and to any subsequent executing legislation, to determine if this general rule is inapplicable in a certain circumstance’. See also N. Lubell, above note 48, p. 235; Lubell, Noam, ‘Challenges in applying human rights law to armed conflict’, in International Review of Red Cross, Vol. 87, No. 860, December 2005, p. 741CrossRefGoogle Scholar; Y. Dinstein, above note 4, p. 71. As Dinstein notes, while the Covenant and the European Convention are limited in their application to Contracting parties, ‘[c]ustomary human rights are conferred on human beings wherever they are’. See also Nuhanovic v. The State of the Netherlands, Court of Appeal in The Hague, case number 200.020.174/01, 5 July 2011, p. 17, para. 6.3, available at: http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388 (last visited 4 November 2011), in which the Court stated ‘[a]dditionally, the Court will test the alleged conduct against the legal principles contained in articles 2 and 3 ECHR and articles 6 and 7 ICCPR (the right to life and the prohibition of inhuman treatment respectively), because these principles, which belong to the most fundamental legal principles of civilized nations, need to be considered as rules of customary international law that have universal validity and by which the State is bound’; Mustafic-Mujic et al. v. The State of the Netherlands, Court of Appeal in The Hague, case number 200.020.173/01, 5 July 2011, p. 18, para. 6.3, available at: http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386 (last visited February 2012).

50 Kretzmer, David, ‘Targeted killing of suspected terrorists: extra-judicial executions or legitimate means of self-defence?’, in European Journal of International Law, Vol. 16, No. 2, 2005, p. 184CrossRefGoogle Scholar.

51 Restatement of the Law: The Foreign Relations Law of the United States, Vol. 2, American Law Institute Publishers, St. Paul, MN, 1987, pp. 161–175 (hereafter Restatement of Foreign Relations Law).

52 Ibid, pp. 163–164, para. f.

53 Baxter, Richard R., ‘The duty of obedience to the belligerent occupant’, in British Year Book of International Law, Vol. 27, 1950, p. 235Google Scholar.

54 GC III, Art. 4(A)(2). Resistance during occupation is distinguished from participation in fighting an invading force. Hague Regulations, Art. 2 and GC III, Art. 4(A)(6) provide lawful belligerent status to what has been termed the levée en masse and with it the right to be treated as a prisoner of war upon capture. The levée en masse is described as inhabitants of a non-occupied territory who, upon the approach of an enemy, spontaneously take up arms to resist invasion without having had time to form themselves into regular armed units. They must carry arms openly and respect the laws and customs of war. What is unclear is the degree of organization that the inhabitants must have in order to be considered lawful participants in armed conflict, although historically it was considered not to include individual participation. See Spaight, James Molony, War Rights on Land, MacMillan, London, 1911, pp. 51–56Google Scholar. Inhabitants who rose to fight in territory that was occupied originally had no right to do so; however, provision was made in 1949 in Art. [Art.] 4(A)(2) of GC III to provide prisoner-of-war status to members of organized resistance movements belonging to a party to a conflict. Those members have to meet specific conditions of being under responsible command, wearing a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting their operations lawfully. However, these conditions for legitimate status for members of organized resistance movements are largely seen as being unrealistic in practice. See Levie, Howard, ‘Prisoners of war in international armed conflict’, in International Law Studies, Vol. 59, 1977, p. 42Google Scholar.

55 AP I, Art. 44(3) (emphasis added). In those circumstances, the combatant must carry arms openly during each military engagement and during such time that he or she is visible to an adversary while engaged in a military deployment preceding the launching of an attack.

56 For example, see the Reservations made by Canada, the United Kingdom, France, and Germany, available at: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P (last visited February 2012.).

57 GC IV, Art. 78.

58 Ibid., Art. 68.

59 John Keegan, A History of Warfare, Vintage Books, New York, 1993, p. 57: ‘[t]he civilized societies in which we best like to live are governed by law, which means that they are policed’.

60 GC IV, Arts. 64–78.

61 Campanelli, Danio, ‘The law of military occupation put to the test of human rights’, in International Review of the Red Cross, Vol. 90, No. 871, September 2008, p. 654CrossRefGoogle Scholar.

62 Ibid., p. 659.

63 M. Sassòli, above note 11, p. 662. See also Goldstein, Joshua S., Winning the War on War: The Decline of Armed Conflict Worldwide, Dutton, New York, 2011, p. 130Google Scholar. Although referring to a non-occupation situation, he notes: ‘[p]eace operations and counterinsurgency operations have grown closer in nature, as seen in Afghanistan today where civil/political and military elements of counterinsurgency mix fluidly with humanitarian assistance, intertribal conflict resolution, and civil society capacity building, all under a UN mandate, but with a large heavily armed NATO force carrying it out’.

64 University Centre for International Humanitarian Law, Expert Meeting on the Right to Life in Armed Conflict and Situations of Occupation, held at Geneva, 1–2 September 2005, pp. 22–23, available at: http://www.geneva-academy.ch/docs/expert-meetings/2005/3rapport_droit_vie.pdf (last visited February 2012) (hereafter UCIHL Meeting Report). See also Doswald-Beck, Louise, ‘The right to life in armed conflict: does international humanitarian law provide all the answers?’, in International Review of the Red Cross, Vol. 88, No. 864, December 2006, pp. 892–894CrossRefGoogle Scholar.

65 Y. Dinstein, above note 4, p. 1.

66 Asprey, Robert B., War in the Shadows, Vol. I, Doubleday & Co. Inc., Garden City, NY, 1975, p. 409Google Scholar.

67 Shy, John and Collier, Thomas W., ‘Revolutionary war’, in Paret, Peter (ed.), Makers of Modern Strategy from Machiavelli to the Nuclear Age, Princeton University Press, Princeton, 1986, p. 833Google Scholar.

68 R. B. Asprey, above note 66, pp. 417–418.

69 Ibid., p. 460.

70 Ibid., p. 461.

71 Ibid., p. 472.

72 See Ellis, John, From the Barrel of a Gun: A History of Guerrilla, Revolutionary and Counter-insurgency Warfare, from the Romans to the Present, Greenhill Books, London, 1995, pp. 165–166Google Scholar, for a discussion of the development of units organized into brigades, divisions, and corps capable of conducting operations ‘half way between guerrilla operations proper and full-scale positional warfare’.

73 R. B. Asprey, above note 66, p. 481.

74 J. Shy and T. W. Collier, above note 67, p. 833.

75 Ibid.

76 Tse-Tung, Mao, On Guerrilla Warfare, trans. Samuel B. Griffith, University of Illinois Press, Champaign, IL, 2000Google Scholar.

77 Ibid., pp. 71–76.

78 Ibid., pp. 52–53.

79 J. Ellis, above note 72, p. 200.

80 Ricks, Thomas E., Fiasco: The American Military Adventure in Iraq, Penguin Press, New York, 2006, p. 145Google Scholar. See also European Court of Human Rights (ECtHR), Case of Al-Skeini and Others v. The United Kingdom, application no. 55721/07, 7 July 2011, para. 10, available at: http://www.unhcr.org/refworld/pdfid/4e2545502.pdf (last visited February 2012) (hereafter Al Skeini case).

81 See Kolb, Robert, ‘Occupation in Iraq since 2003 and the powers of the UN Security Council’, in International Review of the Red Cross, Vol. 90, No. 869, 2008, p. 29CrossRefGoogle Scholar; M. Zwanenburg, above note 24, p. 745; Roberts, Adam, ‘The end of occupation in Iraq (2004)’, in International and Comparative Law Quarterly, Vol. 54, January 2005, p. 27CrossRefGoogle Scholar; and Roberts, Adam, ‘Transformative military occupation: applying the laws of war and human rights’, in American Journal of International Law, Vol. 100, No. 3, 2006, pp. 608–613CrossRefGoogle Scholar.

82 See Al Skeini case, above note 80, para. 143: ‘This aim was achieved by 1 May 2003, when major combat operations were declared to be complete and the United States and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations’, and ibid., para. 148: ‘the occupation came to an end on 28 June 2004, when full authority for governing Iraq passed to the Interim Iraqi Government from the Coalition Provisional Authority, which then ceased to exist’.

83 Bayley, David H. and Perito, Robert M., The Police in War: Fighting Insurgency, Terrorism, and Violent Crime, Lynne Rienner Publishers, Boulder, CO, 2010, p. 6Google Scholar.

84 Ibid., p. 7. See also Keegan, John, The Iraq War, Key Porter Books, Toronto, 2004, pp. 206–207Google Scholar.

85 D. H. Bayley and R. M. Perito, above note 83, p. 7.

86 T. E. Ricks, above note 80, p. 162. See also Coalition Provisional Authority Order Number 2: Dissolution of Entities, 23 May 2003, available at: http://www.iraqcoalition.org/regulations/20030823_CPAORD_2_Dissolution_of_Entities_with_Annex_A.pdf (last visited February 2012).

87 Gordon, Michael R. and Trainor, General Bernard E., Cobra II: The Inside Story of the Invasion and Occupation of Iraq, Pantheon Books, New York, 2006, p. 468Google Scholar.

88 J. Keegan, above note 84, p. 182.

89 Al-Skeini case, above note 80, para. 22, quoting from the 2008 Aitken Report.

90 D. H. Bayley and R. M. Perito, above note 83, p. 6.

91 Ibid., p. 11.

92 See also J. Keegan, above note 84, p. 207, where he states in respect of the insurgents: ‘[t]heir methods, familiar to Israeli troops fighting the intifada but also to British with experience in Northern Ireland, were those of terrorism – attacks on patrols by gunmen who disappeared into side streets, roadside bombs – intensified by the self-sacrifice of suicide bombers’.

93 T. E. Ricks, above note 80, p. 217. Sergio Catignani, ‘The Israel Defense Forces and the Al-Aqsa Intifada: when tactical virtuosity meets strategic disappointment’, in Marston, Daniel and Malkasian, Carter (eds), Counterinsurgency in Modern Warfare, Osprey Publishing, Oxford, 2010, p. 235Google Scholar, notes that such weapons have also been used by groups resisting other occupation forces, as seen in the 2000–2005 Al-Aqsa Intifada against Israeli occupation, where ‘the placement of improvised explosive devices (IEDs) on roads leading to settlements was an especially lethal tactic that accounted for numerous military and civilian casualties’.

94 T. E. Ricks, above note 80, p. 329. See also ibid., p. 337. The violence against occupation forces in early 2004 rose from ‘about 280 incidents in the last week of March, then about 370 in the first week of April, then 600 in the second week’.

95 Ibid., p. 345.

96 Al Skeini case, above note 80, p. 10, para. 23.

97 Hashim, Ahmed S., Insurgency and Counter-insurgency in Iraq, Cornell University Press, Ithaca, NY, 2006, pp. 188–200Google Scholar.

98 BBC News, ‘Baghdad terror blasts kills dozens’, 27 October 2003, available at: http://news.bbc.co.uk/2/hi/3216539.stm (last visited February 2012).

99 T. E. Ricks, above note 80, p. 338. See also A. S. Hashim, above note 97, pp. 256–264, for a discussion of Moqtada al-Sadr and the revolt of 2003–2004; Cockburn, Patrick, Muqtada Al-Sadr and the Shia Insurgency in Iraq, 2008, Faber and Faber, London, pp. 172–186Google Scholar, discussing the siege of Najaf; and Bing West, No True Glory: A Frontline Account of the Battle for Fallujah, Bantam Dell, New York, 2005, pp. 61–62.

100 P. Cockburn, above note 99, pp. 181–182; T. E. Ricks, above note 80, pp. 337–338.

101 John F. Burns, ‘The struggle for Iraq: the occupation; troops hold fire for negotiations at 3 Iraqi cities’, in New York Times, 12 April 2004, available at: http://www.nytimes.com/2004/04/12/world/struggle-for-iraq-occupation-troops-hold-fire-for-negotiations-3-iraqi-cities.html?pagewanted=print (last visited February 2012).

102 B. West, above note 99, p. 256. However, see Thom Shanker and John Kifner, ‘The struggle for Iraq: troops; suited to guerrillas, a dusty town poses tricky perils’, in New York Times, 25 April 2004, available at: http://www.nytimes.com/2004/04/25/world/struggle-for-iraq-troops-suited-guerrillas-dusty-town-poses-tricky-perils.html?pagewanted=all&src=pm (last visited February 2012), where it is indicated that United States intelligence believed there were ‘2,000 hard-core insurgents, including 200 foreign fighters’.

103 B. West, above note 99, p. 315.

104 Ibid., p. 256.

105 Ibid., pp. 315–316. It is estimated that 18,000 of Fallujah's 39,000 buildings were damaged or destroyed.

106 Ibid.

107 Shultz, Richard H. Jr. and Dew, Andrea J., Insurgents, Terrorists and Militias: The Warriors of Contemporary Combat, Columbia University Press, New York, 2006, pp. 253–254Google Scholar.

108 A. S. Hashim, above note 97, p. 60.

109 Chehab, Zaki, Inside the Resistance: The Iraqi Insurgency and the Future of the Middle East, Nation Books, New York, 2005, p. 18Google Scholar.

110 A. S. Hashim, above note 97, p. 170.

111 Ibid., pp. 158–160. See also Z. Chehab, above note 109, pp. 6–8. He describes a June 2003 meeting with a five-person Sunni group armed with hand grenades, AK-47 machine guns, RPG-7s, and a 62 mm mortar which started out as an independent nationalist group, but which at that point had growing ties to groups with Islamic backgrounds, ex-Ba'athists, and members of the Fedayeen Saddam.

112 A. S. Hashim, above note 97, pp. 138–139.

113 R. H. Shultz and A. J. Drew, above note 107, pp. 240–242; A. S. Hashim, above note 97, p. 169.

114 T. E. Ricks, above note 80, pp. 392–393.

115 The U.S. Army, Marine Corps Counterinsurgency Field Manual, U.S. Army Field Manual No. 3-24, Marine Corps Warfighting Publication No. 3-33.5, University of Chicago Press, Chicago, 2006 (hereafter Counterinsurgency Manual).

116 Ibid., p. 2, para. 1–2 (emphasis added). The potential link between insurgency and occupation was recognized in Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (III) Geneva Convention Relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, Art. 4, p. 58Google Scholar, where, in order to counter a perspective that providing prisoner-of-war status to members of organized resistance movements was legitimizing insurgency, it is stated: ‘In our view, the stipulation that organized resistance movements and members of other militias and members of other volunteer corps which are independent of the regular armed forces must belong to a Party to the conflict, refutes the contention of certain authors who have commented on the Convention that this provision amounts to a “ius insurrectionis” for the inhabitants of an occupied territory’.

117 A. Roberts, ‘Transformative military occupation’, above note 81, p. 617, who notes that ‘even if the occupation was theoretically over, the likelihood remained that uses of force, perhaps even exercises of administrative authority, that closely resembled a situation of occupation would occur’.

118 Thompson, Robert, Defeating Communist Insurgency, Hailer Publishing, St. Petersburg, 1966, p. 51Google Scholar. See also Galula, David, Counterinsurgency Warfare: Theory and Practice, Frederick A. Praeger, New York, 1964, pp. 89–90Google Scholar; and Kitson, Frank, Low Intensity Operations: Subversion Insurgency and Peacekeeping, Faber & Faber, London, 1971, p. 49Google Scholar. For an overview of the history of counter-insurgency theory, see Daniel Marston and Carter Malkasian, ‘Introduction’, in D. Marston and C. Malkasian, above note 93, pp. 13–19.

119 Counterinsurgency Manual, above note 115, pp. 360–361, paras. D-38–D-39.

120 R. Thompson, above note 118, pp. 104–106; Counterinsurgency Manual, above note 115, pp. 229–230, paras. 6–90–6–91; D. H. Bayley and R. M. Perito, above note 83, p. 78.

121 Counterinsurgency Manual, above note 115, pp. 360–361, paras. D-38–D-39; D. H. Bayley and R. M. Perito, above note 83, p. 79.

122 Hague Regulations, Art. 43. This article indicates respect for existing laws is required ‘unless absolutely prevented’. See also GC IV, Art. 64, where provision is made for the repeal or suspension of penal laws ‘by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention’.

123 GC IV, Art. 64.

124 Ibid., Art. 54.

125 J. M. Spaight, above note 54, p. 358.

126 G. von Glahn, above note 18, p. 136.

127 Ibid.

128 J. Keegan, above note 84, p. 206.

129 Y. Dinstein, above note 25, pp. 105–106. This also extends to the actions of the occupying forces. See Y. Dinstein, above note 4, p. 208; Congo case, above note 21, para. 323, in which the Court indicates that every belligerent party has a duty of vigilance to ensure that its forces do not engage in pillage.

130 D. H. Bayley and R. M. Perito, above note 83, pp. 8–17.

131 Ibid., pp. 77 and 80.

132 Ibid., p. 81.

133 S. Catignani, above note 93, p. 235, who notes that the violence ‘took on a decidedly different character from the First Intifada’, extending to gunfire being directed at Israeli vehicles, ambushes, and the placement of improvised explosive devices.

134 Counterinsurgency Manual, above note 115, p. 14, para. 1–37.

135 General Smith, Rupert, The Utility of Force: The Art of War in the Modern World, Penguin Books, London, 2007, pp. 3–4Google Scholar.

136 D. H. Bayley and R. M. Perito, above note 83, pp. 71–72.

137 Ibid.

138 Ibid., p. 73. See also Counterinsurgency Manual, above note 115, p. 230, para. 6–92. The Manual identifies four major categories of police: criminal and traffic police, border police, transport police, and ‘[s]pecialized paramilitary strike forces’.

139 D. H. Bayley and R. M. Perito, above note 83, pp. 73–74.

140 Ibid., p. 75.

141 Ibid., p. 77.

142 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations, Basic Books, New York, 1977, pp. 186–187Google Scholar.

143 T. E. Ricks, above note 80, pp. 135–138; D. H. Bayley and R. M. Perito, above note 83, p. 10; A. S. Hashim, above note 97, pp. 19–20.

144 A. S. Hashim, above note 97, pp. 59–124, where the origins and motives of the insurgency are identified as including the protection of Sunni identity; dissolution of the Iraqi security forces; nationalism, honour, revenge, and pride; tribal motives; religion; and political goals including ejecting the foreign occupation.

145 A. Roberts, ‘Transformative military occupation’, above note 81, pp. 615–616.

146 GC IV, Art. 51.

147 Geneva Convention IV Commentary, above note 15, Art. 54, p. 307 (emphasis added). See Watkin, Kenneth, ‘Maintaining law and order during occupation: breaking the normative chains’, in Israel Law Review, Vol. 41, 2008, pp. 182–184CrossRefGoogle Scholar, for a more detailed discussion of the issue of employing local police forces.

148 Geneva Convention IV Commentary, above note 15, Art. 54, p. 307.

149 ICRC Customary Law Study, above note 34, p. 3, where it is stated that ‘[t]he term “combatant” … is used in its generic meaning, indicating persons who do not enjoy the protection of attack accorded to civilians, but does not imply a right to combatant status or prisoner of war status’. See Schmitt, Michael N., Garraway, Charles H. B., and Dinstein, Yoram, The Manual of the Law of Non-international Armed Conflict With Commentary, International Institute of Humanitarian Law, Sanremo, 2006, p. 4Google Scholar: ‘fighters include both members of the regular armed forces fighting on behalf of the government and members of armed groups fighting against the government. The term “fighters” has been employed in lieu of “combatants” in order to avoid any confusion with the meaning of the latter term in the context of the international law of armed conflict’. See also ‘Third Meeting of Experts: The Use of Force in Occupied Territory, 29–30 October 2009, Geneva’, in ICRC, Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory, report prepared and edited by Tristan Ferraro, ICRC, March 2012 (hereafter ‘Use of Force in Occupied Territory’), where the term ‘fighter’ is used to describe those fighting occupation forces. (in this edition)

150 Baxter, Richard R., ‘So-called “unprivileged belligerency”: spies, guerrillas, and saboteurs’, in British Year Book of International Law, Vol. 28, 1951, p. 323Google Scholar, where the term ‘unprivileged belligerent’ is defined as ‘persons who are not entitled to treatment as either peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949’. However, see Dörmann, Knut, ‘The legal situation of “unlawful/unprivileged” combatants’, in International Review of the Red Cross, Vol. 85, No. 849, March 2003, pp. 45–74CrossRefGoogle Scholar, who notes that the terms unlawful/unprivileged combatant/belligerent are not found in international humanitarian treaty law, and who provides an outline of the protections available to persons termed as such.

151 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd edition, Cambridge University Press, Cambridge, 2010, pp. 36–37CrossRefGoogle Scholar. In referring to such participants as ‘unlawful combatants’, he notes ‘in contradistinction to a lawful combatant, an unlawful combatant fails to reap benefits of the status of a prisoner of war. Hence, although he cannot be executed without trial, he is susceptible to being prosecuted and punished by military tribunal’. See also L. C. Green, above note 16, p. 137, where he notes that those who fail to comply with the requirements of AP I, Art. 44(3) to carry arms openly during an attack or while deploying prior to an attack ‘may find themselves treated as unlawful combatants’.

152 GC IV, Art. 64(2); see also Arts. 65–68.

153 G. von Glahn, above note 18, pp. 51–52. See also Draper, Colonel G. I. A. D., ‘The legal classification of belligerent individuals’, in Meyer, Michael A. and McCoubrey, Hilaire (eds), Reflections on Law and Armed Conflict: The Selected Works on the Laws of War by the Late Professor Colonel G.I.A.D. Draper, OBE, Kluwer Law International, London, 1998, p. 201Google Scholar; H. Levie, above note 54, pp. 39–40.

154 Hostage case, above note 19, p. 1244, which notes, in respect of the organized resistance in Yugoslavia, ‘The evidence shows that the bands were sometimes designated as units common to military organization. They, however, had no common uniform. They generally wore civilian clothes although parts of German, Italian, and Serbian uniforms were used to the extent they could be obtained. The Soviet star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so.’

155 Geneva Convention IV Commentary, above note 15, Art. 54, p. 307 and n. 7, where reference is made to a draft ‘Declaration applying to Police Officers the Geneva Convention of August 12th, 1949, concerning the protection of civilians in wartime’, which provides that ‘[d]uring or after occupation, Police officers may in no case be subjected to penalty or compulsion by reason of the execution by them of an order of any authority which could in good faith be regarded as competent especially if the execution of this order was a normal part of their duty’.

156 GC III, Art. 4 A (2).

157 ‘Use of Force in Occupied Territory’, above note 149, pp. 18–21; Pejic, Jelena, ‘The protective scope of Common Article 3: more than meets the eye’, in International Review of the Red Cross, Vol. 93, No. 881, March 2001, pp. 191–193Google Scholar. See also ICTY, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-A, Decision of 2 October 1995, para. 70; ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), 7 May 1997, paras. 562–568; ICTY, Prosecutor v. Ljube Boskoski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, paras. 175 et seq.

158 Inter-American Commission on Human Rights, Juan Carlos Abella v. Argentina, Case 11.137, in Inter-American Yearbook on Human Rights, Vol. 13, 1997, 602 (Commission report) (hereinafter the Abella Report).

159 Moir, Lindsay, ‘Law and the Inter-American Human Rights System’, in Human Rights Quarterly, Vol. 25, pp. 189–190Google Scholar. For a discussion of the Abella Report regarding its reliance on humanitarian law norms.

160 See Susan Breau, Marie Aronsson, and Rachel Joyce, ‘Discussion paper 2: drone attacks, international law, and the recording of civilian casualties of armed conflict’, Oxford Research Group, June 2011, available at: http://www.google.com/search?q=Discussion+Paper+2%3A+Drone+Attacks%2C+International+Law%2C+and+the+Recording+of+Civilian+Casualties+of+Armed+Conflict%E2%80%9D%2C&sourceid=ie7&rls=com.microsoft:en-us:IE-SearchBox&ie=&oe= (last visited February 2012), for reference to the Abella case in the context of applying the intensity and duration criterion for assessing the threshold for a non-international armed conflict.

161 See J. Pejic, above note 157, p. 192, for an outline of the organization ‘criterion’ in the ICTY jurisprudence.

162 Stanley A. McCrystal, ‘It takes a network: the new frontline of modern warfare’, in Foreign Policy, March/April 2011, available at: http://www.foreignpolicy.com/articles/2011/02/22/it_takes_a_network?print=yes&hidecomments=yes&page=full (last visited February 2012). As General McCrystal noted, there was an initial attempt to assess Al Qaeda in Iraq in terms of a traditional military structure: ‘But the closer we looked, the more the model didn't hold. Al Qaeda in Iraq's lieutenants did not wait for memos from their superiors, much less orders from bin Laden. Decisions were not centralized, but were made quickly and communicated laterally across the organization. Zarqawi's fighters were adapted to the areas they haunted, like Fallujah and Qaim in Iraq's western Anbar province, and yet through modern technology were closely linked to the rest of the province and country. Money, propaganda, and information flowed at alarming rates, allowing for powerful, nimble coordination. We would watch their tactics change (from rocket attacks to suicide bombings, for example) nearly simultaneously in disparate cities. It was a deadly choreography achieved with a constantly changing, often unrecognizable structure’.

163 Meron, Theodor, ‘The humanization of humanitarian law’, in American Journal of International Law, Vol. 94, No. 2, 2000, p. 261CrossRefGoogle Scholar.

164 Ibid. See also S. Breau et al., above note 160, p. 5, who note that ‘what level [of organization] this is has not been agreed upon, but it appears to be the consensus that an insurgent group must be organised enough to fulfil the obligations imposed upon them by Article 3 in order to be a “party” to an armed conflict’.

165 UCIHL Meeting Report, above note 64, p. 29, which suggests ‘that the threshold for determining the existence of a Common Article 3 NIAC [non-international armed conflict], i.e., armed violence of a certain intensity and duration, provided a useful threshold for determining whether there has been a “resumption” or “outbreak” of hostilities in the relevant part of the occupied territory where the hostilities stem from resistance activity’.

166 Crawford, Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict, Oxford University Press, Oxford, 2010, p. 78CrossRefGoogle Scholar, where it is noted that there is no equivalent status to prisoner of war in non-international armed conflict and ‘[w]hile the law of non-international armed conflict does not expressly prohibit or criminalize participation … international law does not immunize such participation from the operation of domestic law’. See also Moir, Lindsay, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 60CrossRefGoogle Scholar: ‘[o]nce rebels are captured, or otherwise rendered unable to continue fighting … they become hors de combat and are entitled to the same level of treatment as civilians. Their legal status nevertheless remains unchanged, exposing them to the full force of the State's criminal law’; and Zegveld, Liesbeth, The Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 36Google Scholar : ‘armed opposition groups cannot, on the basis of Common Article 3, claim immunity from prosecution and punishment when captured by the territorial state for their acts contrary to the laws of the territorial state’.

167 R. B. Asprey, above note 66, pp. 434–435, where it is indicated that in February 1943 the organized resistance in France consisted of five distinct groups. One of the most effective organizations was not linked to the occupied state: the Communist ‘Front National’, which provided nearly a third of the Maquis in a group called the ‘Franc Tireurs et Partisans’, did not give up control of their units but did co-operate with the Allied Powers and other groups in seeking to establish a secret army ‘more by need for recognition, arms, and money than by patriotism’. Similarly, the resistance in Yugoslavia presented another complicated situation. Tito's Partisans were seeking to oust the exiled regime and by ‘November 1941, the communists and monarchists were at each other's throats’. See Bennett, Matthew, ‘The German Experience’, in Beckett, Ian F. W. (ed.), The Roots of Counterinsurgency: Armies and Guerrilla Warfare 1900–1945, Blandford Press, London, 1988, p. 74Google Scholar. Notwithstanding this inter-group conflict, operations by and against the German occupier occurred in the context of an international armed conflict and not an internal one.

168 A. S. Hashim, above note 97, pp. 170–176, who notes that in Iraq there were nearly twenty different armed groups engaged in the resistance. While a linkage between most of these groups and the previous regime of Saddam Hussein would have been unlikely, that did not make the conduct of hostilities by or against the occupying Coalition forces any less international in character.

169 Hostage case, above note 19, pp. 1243–1244.

170 GC III, Art. 135 and GC IV, Art. 154. The 1949 Geneva Conventions are supplementary to the 1907 Hague Regulations.

171 Geneva Convention IV Commentary, above note 15, Art. 54, p. 307. See M. Sassòli, above note 11, p. 665, who takes the view that ‘[p]olice operations are not directed at combatants (or civilians directly participating in hostilities) but against civilians (suspected of crimes threatening public order)’.

172 GC IV, Art. 54.

173 Geneva Convention IV Commentary, above note 15, Art. 54, p. 306.

174 ICTY, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, above note 157, para. 70.

175 Hostage case, above note 19, p. 1244. In limited circumstances some groups may operate as lawful combatants. The court noted ‘[t]here is convincing evidence in the record that certain band units in both Yugoslavia and Greece complied with the requirements of international law. … But the greater proportion of the partisan bands failed to comply with the rules of war entitling them to be accorded the rights of a lawful belligerent’.

176 M. Sassòli, above note 11, p. 665, n. 21. See also D. Kretzmer, above note 50, p. 207.

177 D. H. Bayley and R. M. Perito, above note 83, pp. 68–69. This principle is discussed in the context of a foreign intervention focused on the creation of a self-sustaining legitimate government. However, it has equal applicability to the maintenance of public order in a situation of occupation.

178 Ibid., p. 69. It is noted by authors that four characteristics distinguishing the police from the military are their being lightly armed, or not at all; their deployment as individuals or small groups; the exercise of more individual discretion; and an organizational structure separate from the military.

179 Ibid.

180 Ibid., p. 77.

181 M. Sassòli, above note 11, p. 665.

182 Ibid.

183 Y. Dinstein, above note 4, pp. 91–94. In relying on the original wording of the preceding 1874 Brussels Project of an International Declaration on the Law and Customs of War and the 1880 Oxford Manual of the Laws of War on Land, he adopts a broad interpretation of Article 43 of the Hague Regulations to include public order and life, and states: ‘[i]t is not enough for the Occupying Power to conscientiously protect life and limb. … The military government cannot observe with equanimity an economy under occupation in a shambles or a social breakdown causing distress to the civilian population’ (ibid., p. 93). See also E. Benvenisti, above note 1, pp. 9–11, for a discussion of the differing views of the scope of ‘public order’.

184 McCormack, Timothy and Oswald, Bruce M., ‘The maintenance of law and order in military operations’, in Gill, Terry and Fleck, Dieter (eds.), The Handbook of the International Law of Military Operations, Oxford University Press, Oxford, 2010, p. 445Google Scholar, para. 1.

185 ECtHR, McCann et al. v. United Kingdom, Application no. 18984/91, Judgment of 27 September 1995, para. 148 (hereafter McCann); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August–7 September 1990, para 9, available at: http://www2.ohchr.org/english/law/pdf/firearms.pdf (last visited February 2012) (hereafter UN Basic Principles on Use of Force).

186 ECtHR, McKerr v. United Kingdom, Application no. 28883/95, Judgment of 4 May 2001, para. 100 (hereafter McKerr), for reference to the term ‘shoot to kill’.

187 UN Basic Principles on Use of Force, above note 185, para. 9.

188 See the Israeli High Court of Justice (HCJ), Public Committee Against Torture in Israel v. Government of Israel, HCJ 769/02, Judgment of 11 December 2005, para. 40, available at: http://www.law.upenn.edu/academics/institutes/ilp/targetedkilling/papers/IsraeliTargetedKillingCase.pdf (last visited February 2012) (hereafter Targeted Killing case), relying in part on the European Court of Human Rights decision in McCann, above note 185, p. 148, para. 235, for a discussion of human-rights-based principles regarding law enforcement and the preference for arrest, investigation, and trial.

189 The Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission), Report, Part I, January 2011, p. 233; UN Basic Principles on Use of Force, above note 185, para. 9.

190 United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Economic and Social Council Res. 1989/65, 24 May 1989, Annex, in Economic and Social Council Official Records, 1989, Supp. No. 1, p. 52, UN Doc. E/1989/89, para. 9 (emphasis added).

191 McKerr, above note 186, p. 599, para. 111.

192 Watkin, Kenneth, ‘Controlling the use of force: a role for human rights norms in contemporary armed conflict’, in American Journal of International Law, Vol. 98, No. 1, 2004, pp. 19–20CrossRefGoogle Scholar.

193 AP I, Arts. 43, 48, and 50–52.

194 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, ICRC, Geneva, February 2009, p. 25.

195 AP I, Arts. 51(5)(b) and 57.

196 Rome Statute of the International Criminal Court, 17 July 1998, A/CONF. 183/9, Art. 8(2)(b)(iv), available at: http://www.unhcr.org/refworld/docid/3ae6b3a84.html (last visited February 2012) (hereafter Rome Statute).

197 Schmitt, Michael N., ‘Investigating violations of international law in armed conflict’, in Harvard National Security Journal, Vol. 2, 2011, p. 63Google Scholar, who notes that such an initial inquiry has been formalized by Australia in the form of a Quick Assessment (QA) ‘in which a military member appointed by the officer concerned examines the facts and circumstances of a matter within twenty-four hours. … The primary purpose of the QA is to determine whether further action is required’.

198 Canadian Broadcasting Corporation, ‘Afghan deaths focus of special forces probe’, 14 September 2010, available at: http://www.cbc.ca/news/canada/story/2010/09/14/sand-trap.html (last visited February 2012), where it is indicated that, in addition to a criminal investigation into alleged wrongdoing, ‘a military board of inquiry, which investigates major problems within the Canadian Forces, is looking into administrative and non-criminal issues surrounding the case, and is hearing 100 witnesses as it conducts its probe’.

199 Rome Statute, above note 196, Arts. 25–28.

200 Cassese, Antonio, International Criminal Law, 2nd edition, Oxford University Press, Oxford, 2008, pp. 435–444Google Scholar, for a discussion of the need for international trials. See also ibid., p. 6. International criminal law is unique, as it derives its origins from humanitarian law, human rights law, and national criminal law.

201 See Cryer, Robert, Friman, Håkan, Robinson, Darryl, and Wilmshurst, Elizabeth, An Introduction to International Criminal Law and Procedure, 2nd edition, Cambridge University Press, Cambridge, 2010, p. 64CrossRefGoogle Scholar. The authors indicate that international crimes are primarily intended to be prosecuted at the domestic level. Further, war crimes ‘have been regulated in domestic law the longest and have been prosecuted most often’ and are often considered to be a preferable option in political, sociological, practical, and legitimacy terms. However, see also ibid., p. 580, where it is noted that international tribunals have arisen because of an absence or failure of national justice efforts, ‘but are not meant to replace them’.

202 G. von Glahn, above note 18, p. 29. See also Colby, Elbridge, ‘Occupation under the laws of war’, in Columbia Law Review, Vol. 25, No. 7, 1925, p. 910CrossRefGoogle Scholar : if an occupation is ‘[f]ounded by force it may be overthrown by force’; Einsatzgruppen case (United States of America v. Otto Ohlendorf, et al.) (Case No. 9), 8–9 April 1948, Trials of War Criminals Before the Nuremburg Military Tribunals, Vol. IV, Government Printing Office, Washington, 1950, p. 492 (hereafter Einsatzgruppen case): partisans had ‘wrested considerable territory from the German occupant’ and ‘[i]n reconquering enemy territory which the occupant has lost to the enemy, he is not carrying out a police performance but a regular act of war’.

203 G. von Glahn, above note 18, p. 29.

204 Y. Dinstein, above note 4, p. 45. See also Hostage case, above note 19, p. 1243. The case held that, although the partisans in Greece and Yugoslavia were able to control sections of the country, it remained occupied as ‘it is established that the Germans could at any time they desired assume physical control of any part of the country’.

205 L. C. Green, above note 16, p. 286.

206 B. West, above note 99; and P. Cockburn, above note 99, pp. 184–185, where it is noted that in April 2004 the Mehdi Army had taken over a vast cemetery in central Najaf and ‘the street fighting was very intense with the American troops staying inside their tanks while we tried to hit them from all directions’.

207 See Einsatzgruppen case, above note 202, p. 492, for reference to the partisans having wrestled territory from the German occupier. Further, in reconquering the territory, the occupant ‘is not carrying out a police performance but a regular act of war’.

208 See J. Ellis, above note 72, pp. 167–168. Tito's Partisans set up ‘liberated areas’ which were ‘miniature states controlled by the administrative machinery of AVNOJ [the Partisan Anti-Fascist Council of Liberation]. In this way the Communists both created a uniform administration in all the areas they controlled and also, particularly towards the end of the war, gradually built up the framework of a future national administration’.

209 However, see G. von Glahn, above note 18, p. 29, who took the view that ‘an occupation would be terminated at the actual dispossession of the occupant, regardless of the source of such dispossession’.

210 Targeted Killing case, above note 188, para. 40.

211 Ibid.

212 M. Sassòli, above note 11, p. 668, referring to the military forces familiar with law enforcement of France, Italy, and Spain such as the gendarmerie, carabinieri, and guardia civil. See also Wardlaw, Grant, Political Terrorism: Theory, Tactics and Counter-measures, Cambridge University Press, Cambridge, pp. 97–100Google Scholar.

213 D. H. Bayley and R. M. Perito, above note 83, p. 76.

214 Ibid., pp. 76–77.

215 J. F. Burns, above note 101, who notes that: ‘[t]he insurgents inflicted a new blow when they shot down an Apache attack helicopter about three miles west of the Baghdad airport, killing both crewmen’.

216 Bowden, Mark, Blackhawk Down: A Story of Modern War, Grove Press, New York, 2010, p. 79Google Scholar.

217 Ray Rivera, Alissa J. Rubin, and Thom Shanker, ‘Copter downed by Taliban fire; elite U.S. unit among dead’, in New York Times, 6 August 2011, available at: http://www.nytimes.com/2011/08/07/world/asia/07afghanistan.html?pagewanted=all (last visited February 2012).

218 Rory Carroll, ‘11 killed as civilian helicopter is shot down in Iraq’, in The Guardian, 21 April 2005, available at: http://www.guardian.co.uk/world/2005/apr/22/iraq.rorycarroll (last visited February 2012).

219 Nuclear Weapons case, above note 45, p. 240, para. 25. For an example of an approach that blends IHL, human rights law, and general international law, see Nils Melzer, ‘Conceptual distinction and overlaps between law enforcement and the conduct of hostilities’, in T. Gill and D. Fleck, above note 184, p. 33. Melzer introduces a concept of the ‘law enforcement’ and ‘hostilities’ paradigms, both of which would include humanitarian law, human rights law, and general international law. The interaction of these two paradigms would then be governed by the lex specialis principle. See ibid., p. 43.

220 Milanovic, Marko, ‘Norm conflicts, international humanitarian law and human rights law’, in Ben-Naftali, Orna (ed.), International Humanitarian Law and International Human Rights Law, Oxford University Press, Oxford, 2011, p. 124Google Scholar. See also Hampson, Françoise J., ‘The relationship between international humanitarian law and human rights from the perspective of a human rights treaty body’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 562CrossRefGoogle Scholar, who writes that ‘[s]ome way needs to be found to develop a coherent approach to the problem’. See also L. Doswald-Beck, above note 64, pp. 898–900.

221 Andrea Gioia, ‘The role of the European Court of Human Rights in monitoring compliance with humanitarian law in armed conflict’, in O. Ben-Naftali, above note 220, p. 213.

222 Ibid.

223 Ibid., p. 214.

224 Ibid.

225 F. J. Hampson, above note 220, p. 558. Hampson goes on to suggest two other possible interpretations: first, that IHL prevails where it contains an express provision that addresses a similar field to that of a human rights norm; and, second, that the lex specialis depends upon the issue at stake – if the right is not covered by IHL then human rights will prevail. See, generally, ibid., pp. 558–562.

226 M. Milanovic, above note 220, p. 124.

227 See Droege, Cordula, ‘Elective affinities? Human rights and humanitarian law’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 524CrossRefGoogle Scholar. The alternate interpretation of the lex specialis rule is based on the work of Martti Koskenniemi, ‘Study on the function and scope of the lex specialis rule and the question of “self contained regimes”’, UN Doc. ILC(LVI)/SG/FIL/CRD.1 and Add. 1, 2004. See also Marco Sassòli, ‘The role of human rights and international humanitarian law in new types of armed conflicts’, in O. Ben-Naftali, above note 220, pp. 34 and 71, where he suggests resolving conflicting norms by favouring the norm with the broadest application, that with the greatest precision, that having explicit application, and that with the most restrictive application; and Sassòli, Marco and Olson, Laura M., ‘The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 603–604CrossRefGoogle Scholar.

228 C. Droege, above note 227, p. 524.

229 Ibid.

230 See ibid., p. 522. See also M. Milanovic, above note 220, p. 100.

231 Y. Dinstein, above note 151, p. 23. Dinstein suggests that ‘this lapse does not prove much’.

232 Y. Dinstein, above note 4, p. 86.

233 Abresch, William, ‘A human rights law of internal armed conflict: the European Court of Human Rights in Chechnya’, in European Journal of International Law, Vol. 16, No. 4, 2005, p. 747CrossRefGoogle Scholar, who states that ‘[t]he rationale that makes resort to humanitarian law as lex specialis appealing – that its rules have greater specificity – is missing in internal armed conflicts … the humanitarian law of internal armed conflict is quite spare and seldom specific’.

234 C. Droege, above note 227, p. 538, where it is stated: ‘[i]n abstract legal terms, the answer must be … where the occupying power has effective control, is in a law-enforcement situation and capable of making arrests, it should act in compliance with the requirements of human rights law’.

235 UCIHL Meeting Report, above note 64, p. 21.

236 For example, in respect of the European Court of Human Rights and its application of the European Convention on Human Rights provisions, see McCann, above note 185, on Art. 2(2) (the right to life); McKerr, above note 186, on Art. 2(2), Art. 13 (the right to an effective remedy), and Art. 14 (the prohibition against discrimination) of the European Convention on Human Rights. Similarly, in respect of the application of the European Convention of Human Rights provisions, see Makaratzis v. Greece, Application no. 50385/99, 20 December 2004, on Arts. 2, 3 (the prohibition against torture or inhuman or degrading treatment or punishment), and 13; Nachova and Others v. Bulgaria, Application nos 43577/98 and 43579/98, 6 July 2005, on Arts. 2, 13, and 14; Kakoulli v. Turkey, Application no. 38595/97, 22 November 2005, on Arts. 2(2), 8 (respect for private and family life), and 14; Huohvanainen v. Finland, Application no. 57389/00, 13 March 2007, on Art. 2; and Giuliani and Gaggio v. Italy, Application no. 23458/02, 25 August 2009, on Arts. 2(2), 3, 6 (the right to a fair trial), and 13.

237 For example, see Hague Regulations, Art. 46. This provision establishes the requirement to uphold family honour and rights, the lives of persons, religious convictions, and private property. This is also reflected in GC IV, Art. 27, and AP I, Art. 75. See also T. Meron, above note 163, p. 266, for a discussion on the parallelism of content between humanitarian and human rights law.

238 Reference to calling upon the population to assist in policing is found in the Great Britain War Office, Manual of Military Law, His Majesty's Stationary Office, London, 1914, pp. 291–292, para. 381; and the American Rules of Land Warfare, Government Printing Office, Washington, DC, 1914, 10/917, p. 114, para. 319. See also Green, Leslie C., ‘The relations between human rights law and international humanitarian law: a historical overview’, in Breau, Susan C. and Jachec-Neale, Agnieszka, Testing the Boundaries of International Humanitarian Law, British Institute of International and Comparative Law, London, 2006, p. 49Google Scholar, where Green discusses the historical integration of human rights norms into IHL.

239 Statute of the ICJ, Art. 38(1). See Shaw, Malcolm N., International Law, 6th edition, Cambridge University Press, Cambridge, 2008, p. 98CrossRefGoogle Scholar, for a discussion of this general principle of law. The long-standing nature of the norms underpinning law enforcement can be also seen in Geneva Convention IV Commentary, above note 15, p. 36, on Article 3, where it is noted that, in respect of a conflict not of an international character, ‘no Government can object to observing, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, even when dealing with common criminals’. See Jackson, Richard B., ‘Perfidy in non-international armed conflicts’, in Watkin, Kenneth and Norris, Andrew J. (eds), Non-international Armed Conflict in the Twenty-first Century, U.S. Naval War College International Law Studies, Vol. 88, Naval War College, Newport, RI, 2012, p. 251Google Scholar.

240 See M. Milanovic, above note 220, p. 99.

241 ICRC Customary Law Study, above note 34, pp. 299–383.

242 Universal Declaration of Human Rights, 1948, in Brownlie, Ian and Goodwin-Gill, Guy S. (eds), Basic Documents on Human Rights, 5th edition, Oxford University Press, Oxford, 2006, p. 23Google Scholar.

243 International Covenant on Civil and Political Rights, 1966, in I. Brownlie and G. S. Goodwin-Gill, above note 242, p. 358.

244 Additional Protocol I Commentary, above note 36, Art. 75, para. 3092. However, see D. Campanelli, above note 61, p. 666; and E. Benvenisti, above note 1, p. 189, where it is indicated that civil and political rights are ignored in GC IV and AP I. However, this discussion appears to centre around political rights and civil liberties such as the freedom of speech and freedom of movement (see ibid., p. 16).

245 AP I, Arts. 75(1) and (2).

246 AP I, Art. 75(4).

247 See Christopher Greenwood, ‘Scope of application of humanitarian law’, in D. Fleck, above note 7, p. 74, Rule 254.

248 Dennis, Michael J., ‘Application of human rights treaties extraterritorially in times of armed conflict and military occupation’, in American Journal of International Law, Vol. 99, No. 1, 2006 p. 138Google Scholar.

249 Federal Court of Canada, Amnesty International Canada and British Columbia Civil Liberties Union v. Chief of Defence Staff for the Canadian Forces, et al., Case File No. T-324-07, Respondent's Factum, 18 January 2008, p. 26, para. 83, available at: http://web.ncf.ca/fk624/data/Factum%20-%20Crown%20(Charter,%20Jan%2008).PDF (last visited February 2012). The Canadian Government argued before the Federal Court of Canada that, during armed conflict, Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol I apply as a matter of treaty or customary law to guarantee fundamental rights of a detained person charged with a criminal offence that are virtually identical to norms found in international human rights law. For the purposes of the litigation, the conflict in Afghanistan was considered to be a non-international armed conflict. Ibid., p. 3, para. 9, note 1.

250 Hillary Rodham Clinton, ‘Reaffirming America's commitment to humane treatment of detainees’, Press Statement, 7 March 2011, available at: http://www.state.gov/secretary/rm/2011/03/157827.htm (last visited February 2012).

251 See Bellinger, John B. III and Padmanabhan, Vijay M., ‘Detention operations in contemporary conflicts: four challenges for the Geneva Conventions and other existing law’, in American Journal of International Law, Vol. 105, No. 2, 2011, p. 207Google Scholar, where the authors note that ‘the administration neither stated that Article 75 is customary international law nor agreed to apply Article 75 in non international armed conflicts, such as the conflict with Al Qaeda’. However, see also Supreme Court of the United States, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al., 548 U.S. 557, 2006, No. 05.184, 29 June 2006, p. 633, where a plurality of judges of the US Supreme Court held that Article 75 of Additional Protocol I applied as a matter of customary international law in respect of a non-international armed conflict with Al Qaeda.

252 Taft, William H. IV, ‘The law of armed conflict after 9/11: some salient features’, in Yale Journal of International Law, Vol. 28, No. 1, 2003, p. 322Google Scholar. See also Matheson, Michael J., ‘Session one: the United States position on the relation of customary international law to the 1977 Protocols Additional to the 1949 Geneva Conventions’, in American University Journal of International Law and Policy, 1987, Vol. 2, p. 427Google Scholar; Matheson, Michael J., ‘Continuity and change in the law of war: 1975 to 2005: detainees and POWs’, in George Washington International Law Review, Vol. 38, No. 3, 2006, pp. 547–548Google Scholar.

253 A. Roberts, ‘Transformative military occupation’, above note 81, p. 594.

254 Ibid., p. 594; Y. Dinstein, above note 4, pp. 84–85.

255 Wall case, above note 23, p. 131. See also Frowein, Jochen Abr., ‘The relationship between human rights regimes and regimes of belligerent occupation’, in Israel Yearbook on Human Rights, Vol. 28, 1998, p. 8Google Scholar, who notes that ‘humanitarian law may also be referred to in order to support the application of human rights law in situations of armed conflict’.

256 See GC I, Arts. 22(1) and 22(2) regarding arming medical personnel and sentries, etc.; AP I, Arts. 65(3) and 67(1)(d) regarding arming persons for self-defence relating to civil defence. See also the Rome Statute, above note 196, Art. 31(1)(c).

257 ICTY, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgment, 26 February 2001, para. 451.

258 Corn, Geoffrey, ‘Mixing apples and hand grenades: the logical limit of applying human rights norms to armed conflict’, in Journal of International Humanitarian Legal Studies, Vol. 1, 2010, p. 61CrossRefGoogle Scholar : ‘Armed forces have increasingly come to terms with the reality that even during armed conflict, their authority in relation to interactions with individuals falling outside the category of operational opponents – namely civilians or former enemy combatants who are hors de combat – is operationally similar to the authority of police officers interacting with the public during times of peace’.

259 Yuval Shany, ‘Human rights and humanitarian law as competing legal paradigms for fighting terror’, in O. Ben-Naftali, above note 220, p. 25, where it is noted that the ‘normative gaps between “law and order” and the “armed conflict” paradigms are narrowed’ in part ‘due to numerous obligations pertaining to the respect for the rights of individuals in occupied territories, which limit the counter-terrorism options available to occupying forces’. This statement was supported by reference to GC IV, Art. 27, and ICCPR, Arts. 17 and 23. While this does not appear to go as far as stating that there is a complete congruence between the two normative frameworks, it is indicative of similar outcomes in applying law enforcement and hostilities norms in this area.

260 G. Corn, above note 258, pp. 55–56, where he notes that ‘without careful and critical assessment of when and where human rights norms are logically applicable during armed conflict and where that logic dissipates, the risk of overbroad application creates the potent[ial] to disable the efficacy of military operations’.

261 C. Droege, above note 227, pp. 512–522, for a discussion of the meaning of ‘complementarity’.

262 For example, the UN Basic Principles on Use of Force, above note 175.

263 ICTY, Prosecutor v. Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T, 22 February 2001, p. 160, para. 467.

264 M. N. Shaw, above note 239, pp. 98–99; and Restatement of Foreign Relations Law, above note 51, p. 152, para. 701(c), where it is indicated that a state is required to respect the human rights of a person subject to its jurisdiction ‘that it is required to respect under general principles of law common to the major legal systems of the world’.

265 C. Greenwood, above note 247, pp. 59–62.

266 Tadić, Decision on the Defence Motion, above note 157, para. 68.

267 Geneva Convention IV Commentary, above note 15, p. 47, where it is noted in respect of the jurisdiction of the Fourth Geneva Convention referring to persons being in the hands of a Party to the Conflict, that ‘[t]he mere fact of being in the territory of a Party to the conflict or in occupied territory implies that one is in the power or “hands” of the Occupying Power. It is possible that this power will never actually be exercised over the protected person: very likely an inhabitant of an occupied territory will never have anything to do with the Occupying Power or its organizations. In other words, the expression “in the hands of” need not necessarily be understood in the physical sense; it simply means that the person is in territory which is under the control of the Power in question’. See also Y. Dinstein, above note 4, pp. 47–48, who indicates that, in respect of belligerent occupation, effective control established by the Occupying Power on land even extends to ‘any abutting maritime areas and to the superjacent air space’.

268 ‘Use of Force in Occupied Territory’, above note 149, pp. 111 and 117–119, where it is noted that such a result may be an appropriate way to bridge the gap between supporters of the application of human rights and those suggesting an exclusive application of humanitarian law.

269 AP I, Art. 57(2).

270 A. Cassese, above note 200, p. 389, who notes that regional supervisory mechanisms include judicial bodies such as the European Court of Human Rights, the Inter-American Commission, and the Inter-American Court of Human Rights. There is also the African Court on Human and People's Rights, as well as the monitoring body, the African Commission on Human Rights and the Rights of Peoples.

271 Congo case, above note 21, p. 245, para. 220, where the Court found that Uganda was responsible for violations of both international human rights law and IHL. See also Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004 (2187th meeting), CCPR/C/21/Rev.1/Add. 13, 26 May 2004, para. 11: ‘As implied in General Comment 29, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive’.

272 A. Cassese, above note 200, p. 81, where he states that ‘[w]ar crimes are serious violations of customary or treaty rules belonging to the corpus of the international law of armed conflicts’. See also T. Meron, above note 163, p. 266, who notes that ‘the offences included in the ICC Statute under crimes against humanity and common Article 3 are virtually indistinguishable from major human rights violations. They overlap with violations of some fundamental human rights law, which thus become criminalized under an instrument of international humanitarian law’.

273 A. Cassese, above note 200, p. 98; Cryer et al., above note 201, p. 233, where it is noted that ‘crimes against humanity require a context of widespread or systematic commission, whereas war crimes do not; a single isolated act can constitute a war crime’. See also Robinson, Darryl, ‘Defining “crimes against humanity” at the Rome Conference’, in American Journal of International Law, Vol. 93, No. 1, 1999, p. 48CrossRefGoogle Scholar, who notes that an accused can be criminally liable for a single inhumane act (such as murder) as long as it was committed as part of a broader attack.

274 AP I, Arts. 48, 50, 51, 52(2), and 57. As Art. 57(2) states, everything feasible must be done to ensure that attacks are not directed at civilians or civilian objects.

275 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, opened for signature 12 December 1977, U.N.T.S. 609, Art. 1(2). These examples found in the Protocol are widely accepted as being indicative of criminal activity.

276 The doctrine, training, and equipment for both military and police forces generally match the primary roles that they are assigned in counter-insurgency. For military forces, that role includes offensive operations against insurgents and the maintenance of a ‘defensive cordon around areas largely cleared of insurgent violence’. D. H. Bayley and R. M. Perito, above note 83, p. 53. See also Counterinsurgency Manual, above note 115, pp. 60–66, paras 2-19–2-22, for an outline of the range of offensive, defensive, and stability operational roles assigned to US armed forces. This can be contrasted with the police role, which is focused on law enforcement and dealing with subversion within the established cordon. D. H. Bayley and R. M. Perito, above note 83, p. 53. This does not mean that the military force will not be required to perform law enforcement functions, particularly in the absence of an effective police force, or when tasked with stability operations. However, military forces must be equipped and trained to conduct full-spectrum operations. In contrast, while the police may become involved in counter-insurgency operations, their primary role is, and should be, that of core policing (ibid., pp. 75–76). The different nature of the policing role is reflected in training provided in 2006 to police forces in Iraq. That training focused on democratic policing, criminal investigation, anti-terrorism, survival skills, defensive tactics, and firearms (ibid., p. 106). The difference in police training is also practically reflected in the Counterinsurgency Manual, above note 115, p. 232, para. 6–99, where it is indicated that when military forces are tasked to train local police it is the military police who are especially suited to teach basic policing skills: higher-level skills, ‘such as civilian criminal investigation procedures, antiorganized crime operations, and police intelligence operations – are best taught by civilian experts’.

277 See N. Melzer, above note 219, p. 44, who suggests that opening fire against a car for failing to stop at a checkpoint is normally governed by human rights law applicable to police operations and concludes that ‘any reaction against the car approaching the checkpoint must aim to minimize, to the greatest extent possible, the use of lethal force and may involve killing of the driver only where strictly necessary to protect the operating soldiers or others from an imminent threat to life’. However, this conclusion is based on ‘forcible measures specifically directed against persons or objects protected from direct attack’. See also M. Sassòli, above note 11, p. 666, who suggests that, in a checkpoint situation, ‘the law enforcement officials must try to arrest the offender without using firearms and minimize damage and injury’.

278 ICTY, Prosecutor v. Galić, Case No. IT-98-29-T, Judgment, Trial Chamber, 5 December 2003, para. 58.

279 Trinquier, Roger, Modern Warfare: A French View of Counterinsurgency, Praeger Security International, Westport, CT, 2006, p. 21Google Scholar, n. 1, where Yassef Saddi, chief of the Autonomous Zone of Algiers, is quoted as stating after his arrest: ‘I had my bombs planted in the city because I didn't have the aircraft to transport them. But they caused fewer victims that the artillery and bombardments of our mountain villages. I'm in a war, you cannot blame me.’

280 Such a situation occurred in April 2003 in Fallujah, Iraq. See T. E. Ricks, above note 80, pp. 138–142; B. West, above note 99, pp. 12–13. However, in Iraq: Violent Response: The U.S. Army in al-Falluja, Vol. 15, No. 7 (E), June 2003, p. 2, Human Rights Watch took the view that the riot was a law enforcement situation requiring the use of those means. A similar incident occurred in Mosul, Iraq. See Robinson, Linda, Masters of Chaos: The Secret History of the Special Forces, Public Affairs, New York, 2004, pp. 337–338Google Scholar.

281 Counterinsurgency Manual, above note 115, p. 54, para. 2–4.

282 Another example is the NATO airstrikes in Tripoli during the campaign in support of Libyan rebels seeking to take control of that country. See ‘Nato air strikes hit Tripoli in heaviest bombing yet’, in The Guardian, 24 May 2011, available at: http://www.guardian.co.uk/world/2011/may/24/nato-airstrikes-tripoli-heaviest-bombing-libya (last visited February 2012). This bombing did not occur in the context of an occupation; however, it highlights that air power may be used in urban areas, particularly in light of the concentration of opposing forces operating among the population in such areas.

283 The example of an unarmed insurgent located in peaceful civilian-filled surroundings is often provided when considering the use of force under IHL or human rights law. For example, see the Interpretive Guidance, above note 194, p. 81; M. Sassòli, above note 227, p. 85; and C. Droege, above note 227, p. 529. However, the outcome of the application of conduct of hostilities and law enforcement norms in situations such as these may not be as different as is sometimes believed.

284 Colby, Elbridge, ‘Occupation under the laws of war II’, in Columbia Law Review, Vol. 26, 1926, p. 151CrossRefGoogle Scholar.

285 There will continue to be a requirement to separate policing governed by human rights norms and the conduct of hostilities. See Provost, René, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, pp. 349–350CrossRefGoogle Scholar, who notes that ‘while there is indeed space for enlightened cross-pollination and better integration of human rights and humanitarian law, each performs a task for which it is better suited than the other, and the fundamentals of each system remain partly incompatible with that of the other’.