Article

The law enforcement paradigm under the laws of armed conflict : conceptualizing Yesh Din v. IDF chief of staff

Shelly Aviv Yeini

• Harvard national security journal, vol. 10, 2019, p. 461-488

English

Source : https://harvardnsj.org/wp-content/uploads/sites/13/2019/06/Law-Enforcement-Paradigm-under-the-Laws-of-Armed-Conflict.pdf (last accessed on 18.06.2020)

While the two traditional paradigms for the use of force in international law are law enforcement under international human rights law and conduct of hostilities under laws of armed conflict, this Article examines the possibility of a new paradigm of law enforcement under the laws of armed conflict. In the judgment of Yesh Din v. IDF Chief of Staff (Yesh Din) recently given by the Supreme Court of Israel, the court endorsed this entirely new paradigm, which challenges the traditional distinction between law enforcement and the conduct of hostilities. This Article explores the legal justifications of the paradigm and examines whether it has legal grounds to rely upon. It further demonstrates that the new paradigm is vague, permissive, and extremely under-developed. The new paradigm has the potential to be abused by states picking and choosing the norms they wish to apply from either international human rights law or the laws of armed conflict. It is a common saying that “hard cases make bad law.” The arguably problematic judgment of Yesh Din is the result of a complicated and challenging situation that has created bad law indeed.

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