First, some experts expressed support for a so-called “situation-based” or “sliding scale” approach, according to which the choice and application of the model would be based on the situation prevailing at the time the occupying power decided to resort to force. Its pro- ponents claimed that this approach would allow for a smooth transition between the two models: the point of transition would depend on the level of threat faced by the occupying power. It would also permit the occupying power to adjust the use of force to the situation.4 This approach was supported by some participants, but criticized by others who challenged the possibility of such a smooth transition between law enforcement and the conduct of hostilities. These experts also asserted that the approach ignored basic differences in the
3 One expert contended that it would always be very difficult to identify precisely the model applicable and the correlative rules.
He proposed that key principles be extracted from various applicable bodies of law and used as a set of practical guidelines to be applied by the occupying power when resorting to force. The expert said that this would enable us to move away from the rigidity of the separation of the law enforcement and ‘conduct-of-hostilities’ models. This proposal was rejected by the other participants because of the fundamental differences between the rules governing law enforcement and those applicable to the conduct of hostilities (see infra).
4 According to its supporters, only the “sliding scale” theory – with its inherent case-by-case approach – took into account the
simultaneous application of IHL and human rights law in occupied territory, and the impossibility of establishing that one
two models and would eventually result in blurring the distinction between IHL and human rights law.
To put the “sliding scale” theory into practice, its supporters said, it was necessary to iden- tify the conditions or factors for determining which model – law enforcement or ‘conduct- of-hostilities’ – would prevail in a specific situation. Since IHL was held to be silent on the “conversion factors” that permitted a switch from the law enforcement model to the ‘con- duct- of-hostilities’ one and vice versa, the experts set out to identify some of these factors. Three experts insisted that the nature of the threat faced by the occupying power should determine the model applicable. In particular, they said, a threat emanating from insurgent groups – organized to a degree that permitted them to conduct military operations against the occupying power – should be dealt with under the ‘conduct-of-hostilities’ model. These experts argued that it was the only model that would permit the occupying power to quell the threat in question. Thus, taking this approach meant making a choice of model based on the status of individuals within the meaning of IHL. Consequently, the experts proposed that the use of force against combatants, members of organized armed groups and indi- viduals directly participating in hostilities be governed by the rules contained within the ‘conduct-of-hostilities’ model.5
The experts also pointed out that differences in the level of control exerted by the occupant within the occupied territory would have an impact on choosing the model to be applied. The implementation of law-and-order activities would require a significant degree of control over the area or situation under scrutiny. The experts argued that variations in control in the occupied territory, as exemplified by the Oslo agreements between the Palestine Liberation Organization and Israel, would inevitably require the occupying power to reconsider its responses to threats posed by insurgent armed groups. According to some participants, in areas of operation where the occupying power was “firmly in control,” application of the law enforcement model was indicated. On the other hand, some experts were of the view that the ‘conduct-of-hostilities’ model should apply in areas where occupying forces have less control, where it would be very difficult to capture members of enemy forces without exposing the occupying troops to increased risks and where the immediate danger posed by the enemy would be greater.
One participant said that the duration of occupation should also be taken into account, since that could also be influential in determining the normative framework applicable to the use of force in occupied territory. He argued that when the occupation endured, the ‘conduct-of-hostilities’ model would come to be gradually replaced by the law enforcement model. Because violence between the occupying forces and local armed forces and/or organ- ized insurgent groups should subside with the passage of time, it might be expected that the law enforcement norms associated with more peaceful governance would apply. However, this was challenged by two experts who pointed out that recent instances of protracted occu- pation showed that hostilities could continue or resume at any time. Therefore, they argued, duration was not a valid “conversion factor.”
Some experts also claimed that the nature of the occupation could have an influence in determining the model applicable. They drew a distinction between “calm” and “troubled” occupation and claimed that the law enforcement model should be applied to the former and the ‘conduct-of-hostilities’ model to the latter. They said that in “calm” occupations, the seri- ousness and immediacy of the threats faced by the occupying power would usually necessi- tate the application only of law enforcement standards since it could be assumed that enemy armed forces and/or affiliated armed groups had been disarmed and disbanded. These experts found no reason to apply the ‘conduct-of-hostilities’ model when no insurgency
5 However, two experts emphasized that in certain situations it would continue to be impossible for the occupying power to
determine whether a particular person belonged to insurgent groups dealt with under the ‘conduct-of-hostilities’ model. The experts cited a hypothetical example: How should soldiers at a checkpoint respond to persons of unknown status who were driving towards them in a suspicious manner? In such instances, the experts declared, the threat in question should be dealt with in accordance with the ‘escalation-of-force’ rule, without directly opting for the use of lethal force under the ‘conduct-of- hostilities’ model.
existed and when there was no resistance from the armed forces of the local government. They declared that the ‘conduct-of-hostilities’ model could be used only in cases of “troubled occupation” where the effective control exercised by the occupying forces was still being militarily challenged by local armed forces and/or affiliated armed groups.
The experts then considered a second approach to identifying criteria for determining the model applicable to the use of force.