CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ DEVELOPMENT AND CURRENT PERSPECTIVES OF THE ISRAELI PALESTINIAN CONFLICT If a state is not a party to Additional Protocol I or if a body of the national liberation movement does not make a declaration of acceptance of the protocol, a situation may arise in which there is no clear interpretation. It can be either a national conflict (Israel agrees with this interpretation) or a conflict under common Article 2(3) of the Geneva Conventions. Insufficient international practice is an obstacle to the evaluation of the category of wars of national liberation, which are therefore, from the point of view of law, a theoretical possibility without the current practical application. 25 The representatives of the Palestine LiberationOrganization have never made a declaration on the adoption of Additional Protocol I. If this were to happen, the basic precondition for the application of this legislation would be met. The Palestine Liberation Organization was founded in 1964, and in 1988 the movement’s leaders declared Palestine independence as a state. It is extremely unlikely and rather there is no indication that Palestinian officials are interested in adopting Additional Protocol I; on the contrary, Palestinian officials are interested in the full development of statehood. Representatives of the Hamas, Fatah, and Hezbollah movements have not made any similar statement, and therefore a different legal category of conflict must be considered in relation to armed clashes with representatives of these movements. 2.3 National conflicts and internal disturbances and tensions Another type of armed conflict are national conflicts, respectively non-international conflicts. These conflicts were also called civil wars in the past. It is a broad category of conflicts, which includes conflicts of various kinds, with various intensities, various actors, various reasons for initiation, various goals of conflicts, etc. 26 It is a military-type conflict that shows a certain intensity and has a collective nature. There is no need for a non-state insurgent group to exercise effective territorial control, there is no need for the fighting group to be formally recognized, nor is there a need for a case to be referred to the Security Council or the UN General Assembly. In regard to the legal regime of national conflicts, a distinction can be made between conflicts to which Common Article 3 of the Geneva Conventions applies, conflicts between the state and fighting groups or between several fighting groups within the state, and conflicts to which, in addition, the Additional Protocol II of 1977 is applied, these conflicts are more intense and are always between the legal government and non-state armed groups. 27 These conflicts have several features, including prolonged armed violence between a government authority and organized armed groups or between such groups within a state. 28 These three characteristics, i.e., the intensity of the fighting, their longevity, and the organization of the parties to the conflict, must be met cumulatively. 29 If this is not the case, these are not national armed conflicts, but internal disturbances and tensions, which are situations in which clashes take place in a given territory, which are of a certain degree of severity and duration, and are linked to acts of violence. Internal disturbances and tensions 25 ONDŘEJ, ŠTURMA, BÍLKOVÁ, JÍLEK, op. cit. sub. 1, pp. 44–48. BÍLKOVÁ, op. Cit. Sub. 6, pp. 32–34. 26 Ibidem, pp. 34–35. 27 ONDŘEJ, ŠTURMA, BÍLKOVÁ, JÍLEK, op. cit. sub. 1, pp. 49–50. BÍLKOVÁ, op. Cit. Sub. 6, pp. 46–49. 28 ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decission on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, par. 70. 29 MRÁZEK, op. Cit. Sub. 24, p. 93.

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