CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ DEVELOPMENT AND CURRENT PERSPECTIVES OF THE ISRAELI PALESTINIAN CONFLICT to be responsible for these events. In the author’s opinion, it would be possible to consider the application of Israeli national law to these types of conflicts and certainly the law of human rights, but not necessarily international law concerning the regulation of national conflicts.

3. Can terrorism be considered as a new form of armed conflict under international humanitarian law?

In addition to the “classic” armed conflicts described by international humanitarian law, there are new types of conflicts in the international community’s practice, most often international conflicts and counter-terrorism conflicts. These conflicts have specific features that distinguish them from traditional international and national conflicts. The existence of these new conflicts requires that international humanitarian law address several issues, such as the low level of organization of the warring parties, the relatively low intensity of the fighting, or the disputable issue of the existence of the fighting. Often, these new conflicts can only be understood as internal disturbances and tension, but it is also possible to consider including these situations as armed conflicts, which create obligations for both parties that must be respected. Another common problem is that in these cases, civilians often become the primary targets of attack by the warring parties, the civilians often become “ideal victims”, however international humanitarian law should in contrary mainly protect civilians. 34 International humanitarian law applies exclusively to situations of armed conflict. Most states, as well as experts, agree that the fight against terrorism cannot be considered an armed conflict. The International Committee of the Red Cross considers terrorism to be a phenomenon and it is not possible to wage war against a phenomenon, but only against an identified party in an armed conflict. The question may be asked whether a terrorist group can be considered a party to a national armed conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) has held in its case law, some acts of terrorism may constitute prolonged violence and, depending on the degree of its intensity and organization, it may be considered whether such acts would exceed the minimum threshold of armed conflict (as opposed to the isolated acts of terrorism, to which international humanitarian law would not apply). 35 It is clear, that not all the terrorist organizations can be considered as parties to a national armed conflict. To assess this issue, it is necessary to evaluate the organization of such a group and its hierarchical structure, the scale of attacks by a terrorist group, the number of victims, the duration of the attacks, and, where appropriate, the size of the territory under terrorist control are essential to assess this issue. 36 International humanitarian law focuses primarily on organized terrorism, so the position of one of the parties to the conflict (e.g., the state, an armed group, etc.) is essential. This course, Israel. New Zealand and Paraguay also partially consider Hamas to be a terrorist organization, but this only applies to the militant branch of the Hamas movement. 34 ONDŘEJ, ŠTURMA, BÍLKOVÁ, JÍLEK, op. cit. sub. 1, pp. 55–57. 35 IBL, P. Mezinárodní terorismus. [International terrorism.] In: ONDŘEJ, J., ŠTURMA, P. Bezpečnost organizací, mezinárodní bezpečnost a mezinárodní humanitární právo. Sborník mezinárodní konference. [ Security of organizations, international security and international humanitarian law. International Conference Proceedings.] Prague: Private College of Economic Studies, pp. 158–163. 36 RICHTEROVÁ, A. Zahraniční bojovníci a možnost jejich trestněprávního postihu. Prameny a nové proudy právní vědy 71. [ Foreign fighters and the possibility of their criminal punishment. ] Prague: Charles University in Prague, Faculty of Law, 2021, p. 69.

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