Maintaining Law and Order during Occupation: Breaking the Normative Chains
Israel Law Review, Vol. 41, pp. 175-200, 2008
27 Pages Posted: 9 Nov 2008
Date Written: November 1, 2008
Notwithstanding of the considerable body international law dealing with occupation, identification of the normative standards against which law and order is maintained continues to challenge the international community. That challenge is centered on the existence of an unclear and often awkward interface between international humanitarian law and international human rights law.
Policing represents the normal means by which order is maintained in society. In occupied territory the preference should be for maintaining order by means of properly trained police forces seeking to apply international human rights law standards. However, the security threat is often not limited to criminal activity with there being striking similarities between attempting to maintain order in occupied territory and battling insurgencies in internal armed conflicts. This then points to the application of international humanitarian law to govern the use of force.
Despite ongoing disagreement about which paradigm should be applied the question remains whether the proponents of the two frameworks can break free of their normative chains to craft a realistic approach to maintaining law and order. Suggested approaches include the situation based approach of applying the appropriate body of law to specific fact situations and the blended approach of borrowing from each normative regime to address the unique situations confronting security forces. Which ever approach is adopted the emphasis must remain on the right to life to ensure true respect for the rule of law is maintained.
Keywords: IHL, IHRL, occupation, application, law and order
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