CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ DEVELOPMENT AND CURRENT PERSPECTIVES OF THE ISRAELI PALESTINIAN CONFLICT 1. Some general issues related to the definition of armed conflicts The norms of international humanitarian law are applied only in certain circumstances (the norms act ratione materiae ), at certain times ( ratione temporis ), in a certain territory ( ratione loci ), and to certain entities ( ratione personae ). These areas of competence are closely linked and each of them sets the conditions separately. If they are cumulatively met, international humanitarian law will be applied. If these conditions are not cumulatively met, the situation will not be governed by the regime of international humanitarian law, but by other law, such as national law. 1 The field of application of ratione materiae , which defines the concept of armed conflict (formerly war) and includes various types of armed conflicts, can be considered not only as the focus of international humanitarian law, but also as the subject of this paper. The characteristics of armed conflict and the determination of whether there are specifically defined features in the case under review is of a key importance because current international humanitarian law does not establish the same legal regime for all types of armed conflict. At the very least, national and international conflicts are distinguished, and different sets of norms and legal institutes are applied to them. 2 International conflicts are ruled by all four Geneva Conventions of 1949, Additional Protocol I of 1988 and by all treaties of Hague law. By contrast, only common Article 3 of the Geneva Conventions and certain treaties of Hague law apply to national conflicts, and Additional Protocol II of 1977 applies to conflicts of greater intensity. There are several views on the theoretical distinction between international and national conflicts. In terms of territorial scope, a conflict is international if it takes place on the territory of two or more states. On the contrary, it is national if it takes place on the territory of one state. According to the parties to the conflict, a conflict is international if its parties are states. On the contrary, it is national if one of the parties is an insurgent body of a non-state nature. 3 The Geneva Conventions define international conflict as “ all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties ” 4 and as national is defined conflict “ occurring in the territory of one of the High Contracting Parties ”. 5 The position of the parties within the conflict varies in both types of conflict. In international conflicts, combatants have the right to take part in the fight and cannot be prosecuted for participating in the fight, combatants are a legitimate target of military action. On the contrary, civilians cannot participate in the fight, and it is forbidden to attack them intentionally. On the other hand, the status of a combatant is not enshrined in national conflicts, no one has the right to fight here, and it is up to the will of the parties to the conflict to punish the participation in hostilities. In practice, there is no fixed boundary between international and national conflicts, some conflicts are of a mixed nature, so they show signs of both, international and national conflicts. Its character can also often change during the conflict, for example, due to the intervention of foreign troops. National conflicts can thus become international, and their legal regime is not entirely clear. 6 A very special phenomenon are the new types of 1 ONDŘEJ, J., ŠTURMA, P., BÍLKOVÁ, V., JÍLEK, D. Mezinárodní humanitární právo. [ International humanitarian law. ] Prague: C. H. Beck, 2010, p. 37. 2 Ibidem p. 38. 3 Ibidem p. 40. 4 Art. 2(1) Geneva Conventions of 12 August 1949, International committee of the Red Cross, Geneva, sine data. 5 Art. 3(1) Geneva Conventions, ibidem. 6 BÍLKOVÁ, V. Úprava vnitrostátních ozbrojených konfliktů v mezinárodním humanitárním právu. Prameny

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