Law enforcement and the conduct of hostilities : two supplementing or mutually excluding legal paradigms ?
Frieden in Freiheit = Peace in liberty = Paix en liberté : Festschrift für Michael Bothe zum 70. Geburtstag
Baden-Baden : Nomos ; Zürich : Dike, 2008
This article examines the extent to which the principles of IHL are relevant when armed forces engage in operations other than armed conflict. Traditionally, a line has been drawn between the law governing the “conduct of hostilities” in armed conflict (whether international or non-international) and “law enforcement” by armed forces in other circumstances. However, the author argues that despite these distinctions, many of the legal rules and principles applicable during military operations conform in various ways to the regulation of law enforcement. The author suggests that greater awareness of the similarities and differences of these legal regimes will facilitate improved use of military forces and law enforcement, as well as a more appropriate application of the law in non-international armed conflicts. The author contrasts the role of those forces engaged in the conduct of hostilities and those engaged in law enforcement in the context of: internal state disturbances, armed conflicts, peacekeeping missions, and in post-conflict. Despite their differing responsibilities, the author’s examination of the principles of IHL uncovers significant similarities in the legal regulation of law enforcement operations. These principles, and the corresponding concepts of necessity, proportionality and effectiveness, have equal importance in the conduct of armed conflicts and law enforcement. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]