No, Israel is not hamstrung to only using a "law enforcement" paradigm in Jenin under international law

Call the police!

Last week,  the UN’s High Commissioner for Human Rights Volker Turk condemned the Jenin operation, saying that some of the methods and weapons used “are more generally associated with the conduct of hostilities in armed conflict, rather than law enforcement."

“The use of airstrikes is inconsistent with rules applicable to the conduct of law enforcement operations. In a context of occupation, the deaths resulting from such airstrikes may also amount to willful killings,” he said.

What Turk is saying, and what many "human rights" NGOs believe, is that an belligerent occupier must adhere strictly to human rights law which means that any activity done must be police-type law enforcement operations. 

Nations at war, on the other hand, must adhere to international humanitarian law (IHL), which govern wars. The Geneva Conventions are the source for much of IHL.

Turk is wrong. When Israel faces an armed militant group, it not only can but should apply the laws of war. It is absurd to pretend that police actions are adequate to maintain the peace when an armed group has taken over a town. When there are civilians protesting, that calls for law enforcement; when there are heavily armed militants with machine guns and IEDs, that calls for the army and the laws of armed conflict.

The line between the two is not so clear. This was recognized in a 45-page article published in the International Review of the Red Cross in 2012, "Use of force during occupation: law enforcement and conduct of hostilities."

Once it becomes evident that the threat is emanating from a member of an organized armed group or a civilian taking a direct part in hostilities, such as by means of a vehicle-borne IED, then the conduct of hostilities framework would apply at law. In that situation, the use of force is not limited by law enforcement, although such norms would continue to govern the use of force against civilians who are not direct participants in hostilities. ... [T]he force permitted, at law, to counter an IED or suicide bomb by members of organized armed groups or a civilian taking a direct part in hostilities is governed by conduct of hostilities norms. For example, the soldier may be aware from information provided by aerial surveillance, human intelligence, other observation posts and checkpoints, or perhaps even the observation of certain tactics and procedures, that an attack is about to take place. That soldier does not have to wait until the attack is imminent, or the attacker is physically in close proximity and ready to set off explosives, before taking action to remove the threat. In addressing that threat, the soldier can use force governed by conduct of hostilities norms.

In reality, the situation in Jenin is even more tilted towards actual warfare because there is a law enforcement vacuum there. The PA police aren't going into Jenin. If Israel is the legal occupier, then it would be obligated to have forces in Jenin 24/7 - because law enforcement is the responsibility of the occupier!

Obviously, none of the people who insist that Israel is occupying Jenin want to see Israeli police or soldiers opening up police stations there and maintaining order for the civilian citizens. But if Israel is the occupier, that is exactly what Israel is obligated to do!

Which proves that Jenin, and Area A altogether, is not occupied under international law. It is a town with a law enforcement vacuum. By the time Israeli forces must enter, it has turned into a full blown military conflict with armed militias "defending" no one but themselves. 

Even with this, Israel attempts to apply law enforcement paradigms as much as possible when going into towns are trying to arrest militants. This puts Israeli troops and police at extra risk. 

I wrote a satirical thread, somewhat exaggerating the position of "human rights" groups that try to apply a strict law enforcement paradigm to Israel in the territories:

Here is how Amnesty and HRW insist that Israel go after terrorists:

1. Best to not do anything. They are probably innocent and it should be handled by the PA.

2. If absolutely necessary to stop an imminent act of resistance that will definitely kill Israeli civilians,  do not enter the town with force. This scares some children and could damage roads or houses. Just send one policeman to arrest the suspect.

3. Give the suspect, and the entire town, advanced notice that Israel plans to arrest them. That way there are no surprises.

4. In the unlikely event that the suspect or other people decide to shoot or blow up the policeman, only then is he or she allowed to respond with gunfire.

5. When the suspect gives himself up voluntarily, do not frisk or handcuff him. These are painful procedures, and if the suspect is trans, it could be embarrassing, and it is a terrible thing to shame a Palestinian.

6. In the unlikely event that an entire battalion of heavily armed militants respond to the arrest by killing the Israeli policeman and dismembering him or her, send in another and try again.  Use more polite words when requesting his surrender.

7. After several rounds of this with many Israeli policemen dead, then the IDF may enter with a single unarmed Jeep. Soldiers may wear helmets. Try again until successful.

8. Under no circumstances may a bulldozer be used. Under no circumstances may drones be used. Under no circumstances may anything beyond a pistol be used. These are all prohibited as potentially hurting innocent civilians.

9. Under no circumstances may the suspect be injured or killed. He is by definition a civilian since he is not wearing a uniform. Being aggressive is a violation of the Geneva Conventions and a bunch of other international laws that Amnesty has not read.

10. The assumption that a suspect is a civilian also applies to anyone who allegedly attacks Israelis in Israel itself.  They must be peacefully arrested.

I hope this clears up the NGO ruling on how Israelis may defend themselves. In short - they may not.

Luckily, real international law is not as restrictive as the fairy tale versions pushed by Amnesty, HRW and the UN. 

(Made a correction thanks to Irene)

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