The conduct of hostilities regime has been traditionally framed as the field regulating the use of force between belligerent parties in situations of armed conflict; in contrast, law enforcement has been conventionally perceived as the field governing the use of force by the state against individual actors, including rioters and violent demonstrators. However, recent years have witnessed a blurring of these lines. Situations involving the use of force by armed forces and law enforcement officials increasingly lie in a grey zone between military operations, subject to the conduct of hostilities regime, and police action, subject to the law enforcement regime.

In these and other cases, the scope of permissible action can be quite different when the same or similar security challenges are analyzed under either the law enforcement or conduct of hostilities regime. Notably, the conduct of hostilities regime allows for the killing of legitimate targets, whereas the law enforcement regime strives to protect life demanding to “capture rather than kill” suspected persons, unless they pose an immediate threat to life. Moreover, the conduct of hostilities regime tolerates more incidental loss of life than the law enforcement regime. Determining which regime applies can therefore have crucial implications for the humanitarian consequences of an operation.

The legal ambiguities as to the relations between the two regimes is of both universal and local concern. In several violent situations, including in the Israeli-Palestinian context, conflicting understandings of “targeted killings” as either belligerent acts or law enforcement measures have emerged. Similarly, there has recently been considerable debate about the interplay between law enforcement and rules governing the conduct of hostilities in military operations taking place in occupied territories and elsewhere, in situations where there is a need to simultaneously use force to enforce the law against civilians and to respond to military threats. Coalition forces operating in Afghanistan and Iraq similarly encounter the challenge of shifting between legal paradigms when they fulfill the dual role of law enforcers and fighters in hostilities.

In addition to the challenges presented by concurrent combat and law enforcement campaigns, the question of tackling violent criminality through armed forces applying rules of engagement informed by the conduct of hostilities regime is increasingly being considered – for example, in Latin American countries where the so-called 'wars' against organized crime have led to large scale clashes between state forces and heavily armed criminal groups, and in operations by naval forces against modern-age maritime pirates operating from East Africa.

Because of the dramatic humanitarian implications and significant practical and legal ramifications at stake, the conference partners felt that it was important to devote this year’s annual conference to the blurring of boundaries between hostilities and law enforcement operations, and to try to clarify, where possible, the relations between the legal regimes regulating them.

Conference keynote speaker was the distinguished scholar and practitioner Prof. Francoise Hampson of the University of Essex, whose presentation was entitled Between Scylla and Charybdis: The Interplay of Conduct of Hostilities and Law Enforcement from a Policing Perspective. The Dean of the Hebrew University’s Faculty of Law, Prof. Yuval Shany, chaired the keynote session.

Additional sessions explored the overall interplay between IHL and law enforcement (Anton Camen of the International Committee of the Red Cross, Amichai Cohen of Ono Academic College, David Kretzmer of Hebrew University of Jerusalem and Sapir College, Yael Ronen of Shaarei Mishpat Law College), the transposing of IHL principles to law enforcement (Eitan Barak of Hebrew University, Lawrence Hill-Cawthorne of University of Oxford, Michelle Lesh of Hebrew University, Michael Newton of Vanderbilt University), law enforcement near the battlefield (Rogier Bartels of the Netherlands Defence Academy, Emma Bickerstaffe of University of Cambridge, Geoffrey Corn of South Texas College of Law, Charles Shamas of Mattin Group in Ramallah), law at the regimes’ edges (Eitan Diamond of the International Committee of the Red Cross, Rotem Giladi of Hebrew University, Monica Hakimi of University of Michigan, Shlomy Zachary of Michael Sfard Law Office, Israel) and some case studies of atypical violence (Danny Evron of Hebrew University, Tamar Feldman and Raghad Jaraisy of the Association for Civil Rights in Israel (ACRI), Eliav Lieblich of the Interdisciplinary Center (IDC), Fatma Süzgün Şahin of Gazi University and Serdar Ünver of Cankiri Karatekin University, both in Turkey).

The conference discussions were attended by some 150 participants. Academic versions of papers presented at the conference will be published in Israel Law Review.

Adv. Danny Evron