The Legal Framework Regulating Israel’s Use of Force in the West Bank

[Dr Eitan Diamond serves as Manager and Senior Legal Expert at the Diakonia IHL Centre in Jerusalem.

Dr Ellen Nohle serves as a Senior Legal Advisor and Legal Team Coordinator at the Diakonia IHL Centre in Jerusalem.  

Anna-Christina Schmidl serves as a Legal Advisor at the Diakonia IHL Centre in Jerusalem.]

Introduction

Between 7 October 2023, when hostilities broke out in Israel and Gaza, and 26 January 2025, 826 Palestinians were killed by Israeli forces in the West Bank, according to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) in the occupied Palestinian territory (oPt). Incursions by the Israeli military into towns and refugee camps in the West Bank are growing ever more frequent and increasingly involve airstrikes and the infliction of large-scale damage to roads and other civilian infrastructure. 

For example, on 21 January 2025, only two days after the ceasefire in Gaza and Israel entered into effect, Israel launched a major operation in the northern West Bank city of Jenin “which included helicopter gunfire and airstrikes alongside ground force operations.” Since then, 18 persons have reportedly been killed in Jenin and Tulkarm, where operations remain ongoing at the time of writing. According to OCHA, “the refugee camps there are now largely disconnected from the water and electricity grids.”  

This pattern suggests that in Israel’s view, its use of force in the West Bank is governed by the rules of international humanitarian law (IHL) on the conduct of hostilities, which regulate means and methods of warfare. Some legal commentators, both commentators who criticised and others who defended Israel’s actions, seem to have accepted that this is the correct legal framework, for example in respect of an undercover raid of Ibn Sina Hospital in Jenin in January 2024. Building upon a previous publication by the Diakonia IHL Centre, this post clarifies that Israel’s use of force in the West Bank is subject to the more restrictive law enforcement paradigm derived from international human rights law (IHRL).

The Applicable Legal Framework

As an occupying power, Israel must comply with the rules of IHL and IHRL in the oPt (see, e.g., the ICJ’s recent Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, paras. 96-101). 

These two branches of law set out different standards for regulating the use of force. The conduct of hostilities paradigm rooted in IHL is premised on the assumption that lethal force can be lawfully used against fighters and military objectives, provided that the anticipated incidental harm to civilians and civilian objects is not excessive, and that the attacking party takes precautionary measures to avoid, and in any event to minimise, such harm. By contrast, the law enforcement paradigm derived from IHRL mandates that potentially or intentionally lethal force only be used where strictly necessary as a last resort, to avert an imminent threat of death or serious injury (see, e.g., General Comment 36 on the Right to Life, para. 12). Law enforcement operations must be planned in advance to minimise the need to resort to force, and no more force than is absolutely necessary may be applied; incidents of death or serious injury must be reported and investigated (ibid., paras. 12 and 13). 

Which framework is applicable in a particular instance depends on the prevailing circumstances. The conduct of hostilities paradigm applies only in situations of hostilities, i.e., when opposing parties in an armed conflict use means and methods of warfare, while the law enforcement paradigm applies to law enforcement operations carried out by State authorities for purposes of maintaining law and order. By definition, an occupying power exercises effective control over the occupied territory (Art. 42 of the Hague Regulations), which makes the incidence of hostilities less likely (though not impossible). Furthermore, an occupying power has a fundamental obligation to maintain or restore, as far as possible, public order and civil life in the occupied territory (Art. 43 of the Hague Regulations). Accordingly, the default paradigm applicable to an occupying power’s use of force in occupied territory is that of law enforcement (see, e.g., Marco Longobardo, The Use of Armed Force in Occupied Territory, p. 236). The fact that the military rather than the police is carrying out a particular operation, as is typically the case in occupied territory, is not determinative. 

The Circumstances Currently Prevailing in the West Bank 

Hostilities in occupied territory can take place between States, as part of an international armed conflict (IAC), or between a State and one or more non-State armed groups (or between such groups), in a non-international armed conflict (NIAC). An occupation is itself a form of IAC, and any hostilities that take place between the occupying power and the armed forces of the occupied State (i.e., the displaced sovereign) are part of this IAC. 

Hostilities between the occupying power and a non-State armed group may also form part of an IAC provided that the group belongs to the occupied (or any other) State within the meaning of Art. 4(A)(2) of the Third Geneva Convention (GC III), or if the group is acting under the overall control of a State (see, e.g., Prosecutor v. Tadić, Appeals Judgment, para. 120). 

The groups that Israel claims to be fighting in the West Bank, such as the Lions’ Den, Jenin Brigade, and other “small, ad hoc militias only loosely affiliated with the traditional Palestinian factions,” like Hamas and Fatah, do not belong to the State of Palestine in the sense that they are fighting for the State and the State has accepted that the group is fighting on its behalf (2020 Commentary to GC III, para. 1,005). These groups are also not under the overall control of Palestine or another State in the sense that they have “a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support” (Prosecutor v. Tadić, Appeals Judgment, para. 137; emphasis in original). A third State allegedly providing weapons to these groups does not suffice to fulfil the criterion of “overall control.” 

In addition, there is insufficient evidence to conclude that there is a NIAC between Israel and these groups in the West Bank, in parallel to the occupation. For that to be the case, two criteria would have to be fulfilled:

• The fighting would have to have reached a certain level of intensity (according to “the
  number, duration and intensity of individual confrontations; the type of weapons and
  other military equipment used; the number and calibre of munitions fired; the number of
  persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; … the number of civilians fleeing combat zones;” and the involvement of the United Nations (UN) Security Council, amongst other factors (Prosecutor v. Haradinaj, Trial Judgment, para. 49)); and 
• The groups involved would have to have achieved a certain degree of organisation (qua  “the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire[s] or peace accords,” amongst other considerations (Prosecutor v. Haradinaj, Trial Judgment, para. 60)). 

While it has been reported that the groups in question have increased their activities and are capable of planting improvised explosive devices (IEDs), for example, which can inflict damage on Israeli military vehicles, the available information does not support the proposition that these groups would be sufficiently organised to be party to a NIAC, and incidents of violence perpetrated by them are sporadic. It is important to note that unilateral use of force by Israel that resembles hostilities – for example, carrying out airstrikes in densely populated areas – is not sufficient to demonstrate intensity; it is rather an indication that excessive and disproportionate force is being used. 

Israel might argue that its confrontations with groups in the West Bank form part of the NIAC it has been engaged in with armed groups in Gaza, such as Hamas and Islamic Jihad, because the former constitute factions of the latter. However, first, as a matter of law, there is a question as to the geographical scope of a NIAC. According to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), this scope extends to “the whole territory under the control of a party, whether or not actual combat takes place there” (Prosecutor v. Tadić, Interlocutory Decision on Jurisdiction, para. 70), but this proposition is not universally accepted (see, e.g., Marco Sassòli, International Humanitarian Law, para. 6.47). With a ceasefire now in effect in Gaza, which could lead to an end of the NIAC, this argument becomes even more difficult to sustain. 

Second, on the facts, there is little available information to suggest that the groups in the West Bank are integrated into and fall within the command structure of the groups Israel is engaged in hostilities with in Gaza; loose claims of affiliation do not suffice for this purpose.

An alternative argument would be that since an occupation is a type of IAC, any use of force in occupied territory is subject to the legal framework regulating hostilities. However, this position must be clearly rejected, as hostilities are not necessary for a state of occupation to come into being or to continue, and the law of occupation imposes a duty on the occupying power to maintain public order and safety, which indicates, a priori, the use of law enforcement methods. Longobardo has argued that due to the underlying principles and inherent constraints of the law of occupation mandating the occupying power to step into the shoes of the displaced sovereign, it may only use force pursuant to the conduct of hostilities paradigm when the displaced sovereign would be allowed to do so – namely, if the violence has reached the threshold of a NIAC – and only in the area where hostilities are actually occurring (The Use of Armed Force in Occupied Territory, pp. 235-240). 

Furthermore, the occupying power would also have to demonstrate a “sufficient nexus” to the armed conflict in question, and IHRL may still take precedence over IHL (Marco Sassòli, International Humanitarian Law, para. 6.47 and the references cited therein). The fact that Israel is in effective control of the West Bank and has the capacity to address alleged threats to its security by different means (for example, arresting suspects) strongly points in favour of IHRL prevailing. 

Even if it were accepted that the IHL rules on the conduct of hostilities take precedence, such use of force would be subject to additional constraints. Notably, it has been argued that “the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances” (Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, p. 82). Accordingly, and again in light of its effective control in the West Bank, amongst other factors, even the IHL rules on the conduct of hostilities would very likely prohibit Israel from employing the type and degree of force it has used in recent operations in the West Bank.

Conclusion 

Since the outbreak of the hostilities on 7 October 2023, and notwithstanding the ceasefire now in effect in Gaza, Israel has been escalating its use of force against Palestinians in the West Bank and is increasingly employing means and methods of warfare that have claimed many lives and resulted in displacement as well as large-scale destruction of civilian infrastructure. This strongly suggests that Israel is applying the conduct of hostilities framework derived from IHL in the West Bank. Based on the information available to date, the correct legal reading is that Israel’s use of force in the West Bank is governed by the more restrictive law enforcement paradigm rooted in IHRL. There are serious grounds for concern that Israel’s use of force in operations in the West Bank has been in breach of the limitations set in the applicable legal regime and is therefore excessive and unlawful.

Photo attribution: “On the road from Jenin to Nablus, West Bank, Palestine” Almonroth is licenced under CC BY-SA 3.0