CYIL vol. 12 (2021)
CYIL 12 (2021) Selected Issues of the Responsibility of the State of Israel and Palestine… The law of armed conflict is based on several main premises. These include, in particular, the presumption that the aim of war is to break the enemy’s resistance using military force, the principle of military effectiveness, the principle of legal regulation of war, the principle of military necessity, unnecessary suffering, proportionality, and, above all, the principle of humanity, which fundamentally restricts the parties in several ways, where, firstly, the use of armed force is allowed only against fighting members of the army (combatants) and military objects, on the contrary, the use of force against civilians and civilian objects is completely forbidden, and secondly it is forbidden to use traitorous (perfidious) means and such means that cause unnecessary suffering or damage not necessary to break the opponent’s resistance. 2 The law of armed conflict can currently be perceived as essentially international customary law, which has been codified in a number of documents and international treaties, in relation to this paper, it might be mentioned especially the Convention on the Laws and Customs of War on Land of 1907 and the Geneva Convention for the Protection of Civilian Persons in Time of War of 1949, as amended by two Additional Protocols of 1977. 3 Pursuant to the provisions of Article IV of the 1907 Hague Convention, the warring party is responsible for all violations of the Laws and Customs of War on Land the and state bears strict responsibility for violations of the 1949 Geneva Conventions and the two Additional Protocols of 1977 to those conventions. 4 Under international law, a state is responsible for conduct which is contrary to its obligations, provided that such conduct is imputable to the state and that the conduct of that state is unlawful. 5 The text of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts prepared by the UN International Law Commission can be considered very important. 6 The responsibility of states for illegal acts, (i.e., also for violation of international obligations in the field of armed conflict law), comes automatically and it is attributable to the state whose bodies’ conduct are acting ultra vires , bodies of the insurrectional movements, de facto bodies, states can be responsible for actions of private persons and for actions of foreign state bodies. 7 In relation to the content of this article, the main issue is the issue of the responsibility of states for the actions of its armed forces, as well as partly the actions of insurrectional movements or movements fighting for its independence. Under international law, a state which is responsible for a breach of its international obligations, is obliged to make a full reparation of injury caused by the unlawful conduct, to terminate the unlawful acts, and to provide assurances that its unlawful acts will not be repeated. 8 National liberation movements or de facto regimes are also responsible for violations of international humanitarian law, and this responsibility passes to the newly created state if it is 2 Ibidem pp. 433–434. 3 ONDŘEJ, J., POTOČNÝ, M. Mezinárodní právo v dokumentech , 4. doplněné vydání. [International Law in Documents, 4th supplemented edition] Praha: C. H. Beck, 2016, pp. 284 et seq. 4 ONDŘEJ, J., MRÁZEK, J., KUNZ, O. Základy mezinárodního práva veřejného . [Basics of Public International Law], Praha: C. H. Beck, 2018, p. 213. 5 ČEPELKA, Č., ŠTURMA, P. Mezinárodní právo veřejné , 1. vydání. [Public International Law, 1st edition] Praha: C. H. Beck, 2008, pp. 583–584. 6 ONDŘEJ, J., POTOČNÝ, M. ibidem pp. 8–16. 7 ČEPELKA, Č., ŠTURMA, P. ibidem pp. 590–610. 8 Art. 30 Draft articles on Responsibility of States for InternationallyWrongful Acts, ONDŘEJ, J., POTOČNÝ, M. ibidem p. 11.
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