CYIL vol. 12 (2021)

Veronika D’Evereux

CYIL 12 (2021)

Introduction The State of Israel was established based on the will of the international community expressed in General Assembly Resolution 181 (II) of 1947, which suggested the division of the Mandate of Palestine between the two newly formed states, Jewish and Arab. The State of Israel declared independence under quite tense circumstances, and this act was followed by the outbreak of the first Arab-Israeli war. The existence of the State of Israel is a fact from the point of view of international law, and although its creation was accompanied by extremely strong resentment from the Arab population and neighbouring Arab states, Israel continues to exist and has maintained its independence and territorial integrity despite a number of subsequent wars. In 1967, in relation to the results of the Six-Day War, the State of Israel began occupying the territory of today’s West Bank, East Jerusalem, and the Gaza Strip. These territories were later claimed by the Palestine Liberation Organization, which in 1988 declared independence as a state. From the point of view of international law, it is possible to find that Palestine is not yet a state, the statehood of Palestine has not been fully developed, Palestine can be considered a state in the stage of birth, state in statu nascendi . The paper deals with some issues related to the Israeli-Palestinian conflict, especially the issues related to crimes in “the territory of Palestine, which is a state for the purposes of the Rome Statute”. These crimes were claimed to be committed by members of the armed forces of the State of Israel and persons acting in the role of the Israeli state authorities. At present, the issue of individual criminal responsibility can be considered a highly discussed question. The jurisdiction of the International Criminal Court to deal with the Palestinian action was confirmed on 5 February 2021 and on 3 March 2021 the prosecutor of the Court opened an investigation of crimes committed from 13 June 2014 in the “Palestinian Territories”. The possible future punishment of individuals who have committed crimes in “Palestinian territories” does not affect, under international law, the state’s responsibility for violating the obligations of states under international war law, which eventually might be imputable to both the State of Israel and the Palestinian Authority (and thus to the future State of Palestine). 1. Briefly on general responsibility of the states for violations of the law of armed conflicts, responsibility of the State of Israel and Palestine for violations of international humanitarian law Current international law prohibits the resolution of conflicts between states through the use of military force, except in cases where states participate in armed action against an aggressor under a UN Security Council decision under Chapter VII of the UN Charter, and where states participate in military action against an aggressor within a regional organization authorized by the Security Council, and, finally, in the case of the exercise of the right of individual or collective self-defence against armed attack under Article 51 of the UN Charter. Thus, in accordance with international law, it is only possible to wage a defensive war. In many conflicts, in reality it is very difficult to distinguish who is the aggressor and, conversely, who is the attacked state, the Security Council is empowered to do so. However, in practice it is often unable to take appropriate decisions due to inconsistencies in the voting of permanent members. 1 1 POTOČNÝ, M., ONDŘEJ, J. Mezinárodní právo veřejné, zvláštní část , 5. doplněné a přepracované vydání. [Public International Law, Special Part, 5th Supplemented and Revised Edition] Praha: C. H. Beck, 2006, pp. 428–429.


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