Protecting Inhabitants of Occupied Territory: Settler Violence in the West Bank
On July 11, 2025, Israeli settlers allegedly beat Sayfollah Kamel Musallet, a Palestinian-American U.S. citizen and Florida native, to death during a confrontation near Al-Mazra’a Al-Sharqiya, a village in the West Bank where most residents hold U.S. citizenship. A second individual was reportedly killed by gunfire during the same incident. The U.S. ambassador to Israel, Mike Huckabee, labeled the attack “murder” and demanded that Israeli authorities “aggressively investigate” Musallet’s death. Reportedly, Israeli settlers or soldiers have killed at least five U.S. citizens in the West Bank since the October 2023 Hamas attack on Israel.
This incident is part of an escalating pattern of settler violence in the West Bank, centralized in an area where security responsibilities fall to the Israeli forces under the Oslo II Accord (discussed in detail below). According to a July 15 press release from the United Nations Office of the High Commissioner for Human Rights, “[d]uring the first half of 2025, there have been 757 settler attacks that resulted in Palestinian casualties or property damage – a 13 per cent increase on the same period in 2024.”
The report further alleged that “Israeli settlers and security forces have intensified their killings, attacks, and harassment of Palestinians in the occupied West Bank, including East Jerusalem, in the past weeks.” Even the Israeli Defense Forces (IDF) have been the target of settler violence. Indeed, less than a month ago, dozens of settlers attacked an IDF base, confronting soldiers, igniting fires, and vandalizing military vehicles.
While such disorder is alarming, it is not unique to the Israeli occupation. Analogous failures to maintain order have been documented elsewhere, for example, in post-invasion Baghdad during April 2003, when U.S. forces were widely criticized for not preventing extensive looting following the fall of Saddam Hussein’s regime.
In this post, we examine an occupying power’s obligation under the law of armed conflict (LOAC), specifically the law of belligerent occupation, to maintain public order and ensure the security of persons within occupied territory. Our focus is on the legal framework that governs this duty and its specific application in the context of the West Bank. Doing so is complex due to the division of security responsibilities between Israel and the Palestinian Authority (PA) pursuant to the 1995 Oslo II Accord (Interim Agreement on the West Bank and the Gaza Strip), which granted the PA some limited security powers and responsibilities in parts of the West Bank (Annex I). We do not address broader issues such as the legality of Israeli settlements, the displacement of protected persons, or the administration of property under occupation. Rather, we examine one discrete question: the extent of an Occupying Power’s duty to maintain public order and protect the civilian population under LOAC, including in the West Bank.
The Law
The obligation of an occupying power to maintain public order and safety arises only when a state of occupation is established. According to Article 42 of the 1907 Hague Regulations, occupation exists when territory is “actually placed under the authority of the hostile army” (see also Wall, para. 78; Armed Activities, para. 172). The International Court of Justice (ICJ) has clarified that the requisite standard is one of “effective control” over the territory in question (Policies and Practices of Israel, para. 91). This standard is well-accepted, including by the United States (DoD, Law of War Manual, § 11.2.2.1; Dinstein, p. 48-54).
Once occupation commences, various obligations are triggered in order to, inter alia, ensure the well-being of the occupied population. Chief among these is the duty to ensure public order, including security, and civil life in the occupied territory.
In treaty law, the obligation resides in Article 43 of the Regulations annexed to the 1899 Hague Convention II and the 1907 Hague Convention IV. In text nearly identical to its predecessor, the latter provides, “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” It bears noting that the English rendering of “safety” is an imprecise translation of the authoritative French term “vie publics,” which more accurately encompasses the preservation of public life broadly, not merely physical safety (Sassòli, p. 3-4).
Article 43 draws upon earlier formulations in Articles 2 and 3 of the 1874 Brussels Declaration. The Declaration, an initiative of Czar Alexander II, was a draft treaty on the “laws and customs of war” that was agreed to by fifteen European States, but never ratified. The principles were reaffirmed six years later in Articles 43 and 44 of the Oxford Manual, a document prepared by the Institute of International Law.
Although some States, like Israel, are not Party to the 1907 Hague Convention IV, its provisions are generally considered reflective of customary international law binding on all States. During the Nuremberg trials, the International Military Tribunal (IMT) opined that by 1939, the Hague Regulations “were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” (see also IMT for the Far East ). More than 50 years later, the ICJ again emphasized that “these fundamental rules are to be observed by all States whether or not they have ratified the [Hague and Geneva] conventions that contain them, because they constitute intransgressible principles of international customary law” (1996 Nuclear Weapons advisory opinion, para. 79). The DoD Law of War Manual further confirms that “[t]his principle has been recognized as customary international law” (§ 11.5).
Article 43 contains two intertwined obligations. The first is to reestablish public order and life in occupied territory, and to subsequently maintain it. The second, a reflection of the law of belligerent occupation’s goal of ensuring that the occupation disrupts the life of the population as little as possible, is to maintain the law of the occupied territory to the extent feasible (e.g., subject to the security needs of the occupying force).
Establishing and Maintaining Public Order
With respect to the first duty, specifically as it pertains to third-party violence in an occupied territory, the occupying force must both ensure the population’s security and safety and take the necessary measures to maintain their daily life. Accordingly, an occupying force that encounters disorder in the territory it has just occupied must restore order. In any event, it has a continuing obligation to maintain order throughout the period of occupation. As the ICJ observed in its 2005 Armed Activities judgment, “This [Article 43] obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party” (para. 178).
The text “as far as possible” confirms that this is a so-called “obligation of conduct,” not one of “result.” In other words, the existence of disorder in occupied territory may be evidence of non-compliance, but it does not, standing alone, signal a violation. On the contrary, the situation requires contextual assessment. The reality on the ground may be that the Occupying Power has not ensured complete law and order. Still, the legal question is whether it is doing as much as feasible in the attendant circumstances.
In other words, the duty is an affirmative one to take measures, even where an occupying force may not wish to become involved. The late Yoram Dinstein cogently illustrated this situation in his treatise, Belligerent Occupation.
It is possible to contemplate a state of affairs in which some segments of the civilian population are ravaged by roving bands of marauders who act circumspectly where the military government itself is concerned. In such circumstances, the Occupying Power may have no direct incentive to commit its military units to the fray. The commander in charge may be tempted to feel that – as long as the installations and units of the military government do not come under attack and the sole victims are local inhabitants – it is better to avoid the allocation of valuable resources to the suppression of criminal elements. The first part of Regulation 43 enjoins the Occupying Power not to sit idly by when law and order in the occupied territory are in jeopardy, even if its personnel are not at risk and its facilities are not encroached upon (p. 102).
While Article 43 of the 1907 Hague IV Regulations sets forth the most clear-cut obligation to maintain public order, Article 27 of the 1949 Geneva Convention IV also bears on the duty. It provides that “protected persons … shall be protected especially against all acts of violence or threats” and that “the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Protected persons are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (art. 4). Thus, it is textually evident that the Occupying Power has a positive duty to protect the inhabitants of occupied territory.
In our estimation, the reference to security in Article 27 should correspondingly be interpreted to include the security of both the occupying forces and protected persons. A 1958 International Committee of the Red Cross (ICRC) Commentary on Article 27 reinforces this interpretation, explaining,
The Convention … requires States to take all the precautions and measures in their power to prevent such acts and to assist the victims in case of need.
…
A great deal is thus left to the discretion of the Parties to the conflict as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned. As has been seen, those rights must be respected even when measures of constraint are justified.
In other words, when ensuring public order, an Occupying Power must consider whether the measures it is considering will affect inviolable rights of protected persons that are outlined in Geneva Convention IV (art. 47). Of course, any means chosen to maintain or restore public order must comply with LOAC and be compatible with any international human rights obligations borne by the Occupying Power. For instance, resorting to collective punishment, house demolitions, deportations, or coercion is barred (GC IV, arts. 33, 53, 49, 31).
As Professor Marco Sassòli has pointed out, “[t]he most traditional way of restoring public order is criminal prosecution of those who breach it” (Sassòli, p. 4). Such prosecutions will typically be preceded by law enforcement actions, as distinct from “conduct of hostilities” operations, carried out by the occupying force. Notably, he correctly cautions that,
Police operations are subject to many more restrictions than hostilities. To mention but one example, force may be used against civilians only as a last resort after non-violent means have proved unsuccessful in maintaining law and order. As for the use of firearms, it is an extreme measure in police operations, while it is normal against combatants in hostilities (p. 5).
Respect for the Laws in Force
The second obligation of Article 43 requires respect for the laws already in force in the occupied territory, “unless absolutely prevented.” This duty also bears on how public order is to be restored and maintained. By it, existing law may not be suspended or modified in the effort to maintain public order, unless doing so is unquestionably necessary, a high bar indeed.
Geneva Convention IV, Article 64 further developed this aspect of Article 43.
The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.
…
The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration … .
The reference to “the orderly government” must be understood as encompassing measures taken on behalf of the local population. This is the position taken in the U.S. DoD Law of War Manual. (§ 11.5.1).
The Occupying Power’s duty to take all the measures in its power to restore and ensure, as far as possible, public order and safety also provides it authority take such actions. For example, the Occupying Power may enact provisions to maintain the orderly government of the territory.
Similarly, an ICRC Commentary to Article 64 explains that the Occupying Power “will have the right to enact provisions necessary to maintain the ‘orderly government of the territory’ in its capacity as the Power responsible for public law and order.” Accordingly, in circumstances where the local population and property are at physical risk, the occupying force may authorize measures that might not otherwise be permissible under existing legislation. Professor Yoram Dinstein offered the examples of banning unauthorized possession of firearms, imposing curfews, limiting freedom of expression, controlling communications, restricting freedom of association, and limiting freedom of assembly and demonstrations (Dinstein, p. 123).
The Occupying Power’s application of such measures, however, must be tempered so that they do “not under any circumstances serve as a means of oppressing the population” (ICRC, Commentary, art. 64). The DoD Law of War Manual similarly cautions that while the Occupying Power may suspend or alter laws when absolutely necessary, it may not do so arbitrarily or to its own advantage (§ 11.5.2).
In sum, under both treaty and customary law, the well-established obligations of an Occupying Power to ensure public order and civil life, while respecting sovereign laws in place, are extensive but qualified by feasibility.
Occupation of the West Bank
The ICJ has addressed the legal status of the West Bank on multiple occasions. In 2004, it opined that Israel has been in occupation of the area since the 1967 Six-Day War between Israel and (inter alia) Jordan (Wall Advisory Opinion, para. 78). Two decades later, it reaffirmed that status in its Policies and Practices of Israel Advisory Opinion, observing that Israel maintains effective control over the area and therefore remains an Occupying Power under international law (para. 87).
The Israeli Supreme Court has reached the same conclusion. In its 2004 Beit Sourik decision, issued just days before the ICJ’s Wall Advisory Opinion, the Court stated, “The general point of departure of all parties—which is also our point of departure—is that Israel holds the area in belligerent occupation (occupatio bellica)” (para. 23). It continues to hold that view despite the arrangement outlined in the Oslo II Accord discussed below (see e.g., here).
With the condition precedent of occupation satisfied, the legal obligations of an Occupying Power as outlined in the 1907 Hague Regulations and the 1949 Geneva Convention IV are fully applicable in the West Bank. While Israel is not a party to the 1907 Hague Convention IV, the Israeli Supreme Court has recognized that the customary rules reflected in Article 43 of the Hague Regulations are binding under international law. This position was confirmed in its 1991 Taha judgment (see case note here, p. 302). In contrast, Israel ratified Geneva Convention IV in 1951 and is accordingly bound by the provisions in full.
Settler Violence
The ICJ addressed the specific issue of settler violence in its 2024 Policies and Practices of Israel Advisory Opinion. Although it did not explicitly invoke Article 43’s customary law obligation to restore and maintain public order, it did find that Israel bears legal responsibility for failing to prevent and punish violence committed by Israeli settlers against Palestinians (para. 151). Drawing on Article 46 of the Hague Regulations and Article 27 of Geneva Convention IV, the Court emphasized the duty of humane treatment and protection from violence for all protected persons in occupied territory. It also referenced Articles 6 and 7 of the International Covenant on Civil and Political Rights, thereby linking LOAC obligations with those derived from human rights law (para. 149).
The ICJ concluded that “Israel’s systematic failure to prevent or to punish attacks by settlers against the life or bodily integrity of Palestinians, as well as Israel’s excessive use of force against Palestinians, is inconsistent with its obligations under international law” (para. 154). Although the ICJ did not structure its reasoning explicitly around Article 43, it is clear that the Court recognizes a duty on the part of Israel to ensure the safety of the residents of the West Bank from third-party violence. The factual question is whether Israel had it within its power to quell settler violence in the attendant circumstances, since the obligation is one of conduct, not result. In this regard, the Court impliedly suggested it could have taken more measures to do so than it had.
Israeli jurisprudence on the applicable law is in accord. For instance, in Beit Sourik, the Supreme Court pointed out that it had “emphasized, in its case law since the Six Day War, that ‘together with the right to administer comes the obligation to provide for the well being of the population’ (para. 34, citing Elmakdasa). Interestingly, it also adopted the same approach the ICJ took, albeit decades later, focusing on Article 46 of the Hague Regulations and Article 27 of the Geneva Convention IV (para. 35). The latter, as noted earlier, stipulates that protected persons “shall be protected especially against all acts of violence.” The Court emphasized the dual nature of these provisions, a “negative obligation” to “refrain from actions that injure the local inhabitants” and a “positive obligation” to “take legal actions to ensure that the local inhabitants shall not be injured” (para. 35).
In that the West Bank is occupied, it is clear that, in principle, Israel is obligated to take measures to protect the Palestinian population from settler violence by operation of Article 43’s customary law counterpart and Geneva Convention IV, Article 27. However, as noted in Article 43 itself, and as a practical matter, the obligation only extends to measures that are “possible.” This raises the question of the effect of the Oslo II Accord (and its Annex I), which established a unique division of security responsibilities for the Israeli and Palestinian authorities in the West Bank.
Oslo II Accord
The Oslo II Accord is an “interim” agreement between the Palestine Liberation Organization (as the then “representative of the Palestian people”) and the Israeli government, intended to “put an end to decades of confrontation and to live in peaceful coexistence, mutual dignity and security …” (pmbl.). Although both parties regarded the West Bank (together with Gaza) as a “single territorial unit,” the agreement divided the West Bank into three distinct areas (Areas A, B, and C), in part to allocate security responsibilities between Israeli forces and the Palestinian Authority (PA (arts. XI-XV, annex I, arts. II, IV, and V).
In relevant part, the agreement established a Joint Security Coordination and Cooperation Committee (JSC) “to deal with all security matters of mutual concern regarding the [Oslo II Accord] in the West Bank …” (annex I, arts. III and V). The PA, through the Palestinian Police, assumed responsibility for internal security and public order in Area A, except for Jewish Holy Sites, a shared responsibility (annex I, art. V). In Area B, the Palestinian Police are responsible for public order for Palestinians, while Israel maintains responsibility for protecting Israelis and confronting terrorism. (Annex I, art. V). Public order in Area C, where the Israeli settlements are located and where settler violence has taken place, is an Israeli responsibility (arts. XI, XII; annex I, art. V). Key to this arrangement is the manner in which the “residual powers” reside with Israel absent transfers to the PA (see Dinstein, Belligerent Occupation, para. 190).
Implementation of the Oslo II Accord has been challenging from the start, a fact the ICJ highlighted in its 2004 Wall Advisory Opinion (para. 77). Of course, the disorder in the West Bank sparked by Hamas’s October 2023 attack from Gaza has only complicated the security situation in the West Bank by increasing the risk to Israelis there, sparking settler violence, and weakening the ability of both the Israeli security forces and Palestinian Police to maintain law and order.
In our view, neither the Oslo II Accord security arrangements nor the current situation relieves Israel of its obligations as an Occupying Power under LOAC to ensure public order and protect inhabitants of the West Bank from settler violence. This is so even though, under the agreement, “Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military government and its Civil Administration to the Council in accordance with this Agreement” (art. 1). It is clear that an Occupying Power may allow a local authority to carry out responsibilities that it shoulders under the law of belligerent occupation. But as the ICJ indicated in its 2024 Policies and Practices of Israel advisory opinion, “Israel has retained significant control in relation to security matters,” especially in light of “limited and partial” transfers of responsibility to the PA (para. 66). Regardless, Israel, as an Occupying Power, may not relieve itself of its related legal LOAC obligations. Indeed, Article 7 of Geneva Convention IV provides, “No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.”
The fact that Israeli forces are primarily based in Area C has no direct bearing on the continued existence of the occupation, and therefore the law governing it. As noted in the U.S. DoD, Law of War Manual, “the type of forces used to maintain the authority of the Occupying Power is not material … the occupation might be maintained by permanently based units or mobile forces, either of which would be able to send detachments of forces to enforce the authority of the Occupying Power within the occupied district” (§ 11.2.2.1).
However, the scope of Israel’s obligations is undoubtedly affected by both the division of security responsibilities and the unrest in the West Bank, as the duties to ensure public order and protect protected persons are obligations of conduct, not result. Clearly, it shoulders full responsibility to do what it can to stop violent acts against Palestinians in Area C. As to Areas A and B, the PA has the immediate responsibility for responding. But if the PA is unwilling or unable to protect Palestinians there from settler or other third-party violence (should it extend into those areas), Israeli authorities would be obligated to step in to defend them; Israel’s obligation under customary international law and the Geneva Convention IV to maintain order is residual.
This conclusion, based on general principles of international law, is also supported by the text of the Oslo II Accord, which provides, “Both sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other’s authority and against their property and shall take legal measures against offenders” (art. XV; implementation arrangements in annex I).
The legal and practical implications are clear. While the Oslo II Accord may govern modalities of cooperation, including matters of security, it cannot displace the overriding framework of LOAC’s belligerent occupation rules. In situations of settler violence—particularly in areas where it maintains immediate control—Israel bears the legal duty under customary and treaty law to restore public order and protect the civilian population.
Concluding Thoughts
The obligation of an Occupying Power to ensure public order and safety in occupied territory is one of the most firmly established tenets of the law of belligerent occupation. Codified in Article 43 of the 1907 Hague Regulations and reinforced by Article 27 of the Fourth Geneva Convention, this obligation reflects customary international law binding on all States. The ICJ’s jurisprudence, including its 2004 advisory opinion on the Wall and 2024 advisory opinion on the Policies and Practices of Israel, confirms that this obligation entails both negative and positive duties: refraining from inflicting harm on the local population; and proactively preventing harm inflicted by others, such as Israeli settlers, on the occupied territory’s inhabitants.
Although the Oslo II Accord divided security responsibilities in the West Bank, the arrangement does not relieve Israel of public order obligations as an Occupying Power. The fact that settler violence overwhelmingly occurs in Area C, where Israel retains complete security control, reinforces the direct relevance and immediacy of its obligation under international law to take all feasible measures to put an end to settler violence, including through physical security measures, law enforcement, and legal accountability. As the international legal framework makes clear, effective occupation entails effective responsibility. This principle lies at the heart of LOAC and the protection of civilians in situations of belligerent occupation.
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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Major Julia Flores is an active-duty Army judge advocate and a military professor assigned to the Stockton Center for International Law at the United States Naval War College in Newport, Rhode Island.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: ISM Palestine, CC BY-SA 2.0
