The occupier is required by Article 43 of the Hague Regulations to take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country. This obligation is also reflected in Article 64 of the Fourth Geneva Convention, which states: [t]he Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations...to maintain the orderly government of the Territory .... That Convention also requires that protected persons are protected against all acts or threats of violence, and establishes rules governing the maintenance of laws, courts, internment, and so forth.
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It is in the context of maintaining public order and safety that the issue often arises of how the two governing frameworks of humanitarian and human rights law interact with each other. Since the occupation of territory does not end the armed conflict, it is inevitable, as Richard Baxter noted in 1950, that inhabitants of an occupied area will chafe under enemy rule ... and that they will in numerous instances, acting singly or in concert, commit acts inconsistent with the security of the occupying forces. This reality is reflected in the reference to organized resistance movements in the Third Geneva Convention. It is also relevant to the concept of armed combatants in Article 44(3) of Additional Protocol I, where there are special rules regarding the retention of combatant status in situations of armed conflict where, owing to the nature of hostilities, an armed combatant cannot so distinguish himself. A number of states have limited the claim for combatant status in those circumstances to occupied territory and armed conflicts involving national liberation. Further, the Fourth Geneva Convention provides for the
administrative detention of civilians in internment and assigned residence and for taking penal action against persons who commit offences intended to harm the Occupying Power.
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This linking of the legitimacy of participants in hostilities and the enforcement of the law means that police forces of the occupied territory can lawfully be employed against insurgents in all but the most exceptional of circumstances, since the likelihood of a resistance movement meeting the requirements of Geneva Convention III has long been viewed as very remote.
SOURCE: Volume 94 Number 885 Spring 2012