Effects of Agreements for the Suspension of Hostilities

It is generally thought that general armistices at least constitute a preliminary to peace. But if they are only preliminaries to peace, they do not of themselves bring about peace.

The law thus has been and remains that an armistice, whether general or local, and a fortiori a cease-fire or truce, does no more than to bring about a suspension of hostilities but does not terminate the underlying state of war, hostilities, or belligerency.[1] In the figure used in the past, the war “sleeps”, but it remains alive. Indeed, this very aspect of the armistice is spelled out in Article 36 of the Hague Regulations,[2] which says that an armistice “suspends military operations by mutual agreement”. Thus, during the period an armistice is in force between two countries, the legal consequences for treaties of the existence of a state of war remain in effect.

It has been suggested that an armistice concluded under the auspices of the United Nations may have a different character.[3] The General Armistice Agreement between Egypt and Israel of 24 February 1949[4] was, in the language of its preamble, entered into “to facilitate the transition from the present truce to permanent peace in Palestine”, and in Article 1, the Parties declared:

“The establishment of an armistice between the armed forces of the two Parties is accepted as an indispensable step toward the liquidation of armed conflict and the restoration of peace in Palestine.”

After the conclusion of the armistice Egypt kept in operation the controls over merchant vessels, Israeli and neutral (to use the old term), passing through the Suez Canal, which involved contraband control, the exercise of the right of visit and search, and the application of prize law. These had the efFect of excluding Israeli vessels from passage through the Canal. It was contended by Israel that the Armistice of 1949 was not a mere suspension of hostilities but a “permanent and irrevocable renunciation of all hostile acts”.[5] Egypt relied on the orthodox view that an armistice is only a suspension ofhostilities. The Security Council had declared in its resolution of 11 August 1949 that the Agreements constituted “an important step toward the establishment of permanent peace in Palestine” and referred to the fact that “the several Armistice Agreements include firm pledges against any further acts of hostility between the parties... ”.[6] The Security Council was moved, more probably under the impact of political considerations than of legal argument, to declare in 1951 that the Egyptian practices were in violation of the Armistice and called upon Egypt to terminate the restrictions. It considered that—

“since the armistice regime, which has been in existence for nearly two and a half years, is of a permanent character, neither party can reasonably assert that it is actively a belligerent or requires to exercise the right of visit, search and seizure for any legitimate purpose of self defence”.[7]

The resolution does not make it clear whether the armistice in itself or the passage of two and a half years after the conclusion of the armistice rendered unnecessary the exercise of these rights by Egypt, but the latter may be thought to be the better view. Egypt did not comply with the resolution of the Security Council and continued to visit and search, seize cargo, and detain vessels.[8] The outbreak of the “Suez War” may be thought in some degree to have justified the concern exhibited by Egypt that freedom of passage through the Suez Canal by Israeli vessels in particular might have been used as a means of assisting the military and economic build-up of its adversary Israel.

The difference of views over this question is a reflection of a larger question whether a special character attaches to agreements for the suspension of hostilities concluded under the auspices of the United Nations and whether, in light of the provisions of the Charter with respect to the use of force, the old law of armistices still obtains. It will be necessary to return to an important aspect of this matter when the question of cease-fires concluded under the auspices of the United Nations is taken up.78

The fact remains that an armistice is a suspension of hostilities that looks toward the conclusion of peace thereafter. The normal way in which international lawyers used to think about these matters was to assert that the armistice brought about a suspension of hostilities and that a treaty of peace which followed then definitively terminated the conflict.[9] Some armistices of the past even resembled capitulations. Marshal Foch said of the Armistice with Germany in 1919, “L’armistice equivaut a une capitulation, a une capitulation integrale” and Clemenceau said of the same Armistice, “L’armistice a pour but d’assurer aux armees victorieuses une situation telle que leur superiorite soit nettement etablie”.[10] In these days, especially when armistices are concluded by entities that do not recognize each other and which maintain no diplomatic relations, the armistice will of itself be a quasi-treaty of peace, of which the best examples are perhaps the Tashkent Agreement[11] or the Paris Peace Agreements of 1973 regarding Vietnam[12] or the Korean Armistice of 1953.[13] Mixed with the purely military provisions will be a number of political clauses designed to operate for the long term. In the case of armistices or cease-fires concluded between a State and a colony which has been waging a war of national liberation in the exercise of its right of self-determination under the United Nations Charter, the armistice will not be followed by a peace treaty but by an agreement establishing relations with the newly independent State or by the establishment of diplomatic relations.[14]

Especially in the case of a general armistice or of a cease-fire applying to all of the forces of a belligerent, the parties will attempt to proscribe all acts of hostility on as comprehensive a basis as possible. In these days when guerrilla, irregular forces, civilians, terrorists and other categories of persons who are not members of the regular armed forces take part in the conflict, a suspension of hostilities will call for an end to acts of violence by all persons who align themselves with one side or the other. The Agreement on Ending the War and Establishing Peace in Vietnam provided in Article 3 that—

“The regular forces of all services and arms and the irregular forces of the parties in South Vietnam shall stop all offensive actions against each other and shall strictly abide by the following stipulations:

All acts of force on the ground, in the air, and on the sea shall be prohibited;

All hostile acts, terrorism and reprisals by both sides will be banned.”[12]

The Agreement of the Cease-Fire in Laos, concluded between the Government and the “Party of the Patriotic Forces” in 1973, is even more sweeping:

“A. There are absolutely forbidden all activities involving attacks, encroachments, menace or military violations on land or in the air by one of the parties against the zone temporarily under the control of the opposing party.

B. Absolutely forbidden are all hostile military actions, including the activities of bandits, commandos and all armed activities and those of espionage on land and in the air; . . .

C. Absolutely forbidden are all operations involving mop-up, terror, repression, assassination and attacks on the lives and goods of the population and all acts of reprisal and of discrimination towards people who have collaborated with the opposing party during the war;....” [16]

The comprehensiveness of these provisions is particularly appropriate to an agreement intended to bring to an end a civil war in which there had been foreign involvement.

But however sweeping the provisions of an agreement may be, legal questions about the scope of activities prohibited are bound to arise. Because an armistice is presumed not to effect a restoration of peace, measures of economic warfare are not necessarily terminated. National trading with the enemy legislation remains in effect, enemy assets remain frozen, communication with the enemy remains forbidden. The agreements look essentially to the termination or suspension of “hostilities”, not to the termination or suspension of the underlying state of belligerency. Because agreements on suspension of hostilities are concluded in a context that is already regulated by customary international law, problems can arise about how far the agreement goes. Two examples drawn from the application of the Armistices between Israel and the Arab States will suffice.

The General Armistice Agreements, of which that with Egypt is typical, were put in as broad terms as possible:

“No aggressive action by the armed forces—land, sea, or air—of either Party shall be undertaken, planned, or threatened against the people or the armed forces of the other.. .”[17]

and a subsequent article provided:

“No element of the land, sea, or air military or para-military forces of either Party, including non-regular forces, shall commit any warlike or hostile act against the military or paramilitary forces of the other Party, or against civilians in territory under the control of that Party;.. .”[18]

And yet Egypt maintained in force, notably in the Suez Canal and in the Straits of Tiran, its measures of visit and search of vessels, contraband control and prize. Egypt pointed to the established law, to be found in the textbooks, that an armistice does not bring about an end to measures of this character unless they are expressly mentioned in the armistice agreement.[19] Leaving aside the question, which has not itself ever been satisfactorily resolved, whether under the Charter States may continue to have resort to so-called belligerent rights inherited from the pre-Charter law,[20] the justification for these measures might lie in the fact that they are not “hostile” in the same sense as hostilities in arms. Indeed, Egypt pointed to the fact that the inspections were conducted by civilian customs officers. However, the administration of these measures was backed up with the threat of force, and resistance to visit and search, followed by the use of force by the State seeking to exercise the “right” could lead to a new outbreak of violence.[21] The resolution of the Security Council of 1 September 1951 found that the measures taken by Egypt were an abuse of the right of visit and search,[22] but, as has been mentioned, Egypt persisted in its conduct on the ground that the measures were required for self- defence.[23] Two conflicting considerations are at work here. One is that an armistice, especially one concluded at the instigation of the United Nations, should terminate all hostile activities and all activities that might lead to a renewed outbreak of hostilities. The other is that a belligerent should be allowed to protect itself against its adversary’s re-arming itself and strengthening its position under the cover of the armistice—perhaps in order to resume the hostilities suspended but not definitively ended by the armistice.

The General Armistice Agreement between Jordan and Israel contained provisions like those quoted above in the Armistice with Egypt and in addition a clause:

“No warlike act or act of hostility shall be conducted from territory controlled by one of the Parties to this Agreement against the other Party.”[24]

Infiltrators, ranging from farmers to terrorists, would cross the demarcation lines into Israel, fighting would break out, and there would be firing and then attacks across the demarcation line. The Security Council had decided in 1948, that:

“(a) Each party is responsible for the actions of both regular and irregular forces operating under its authority or in territory under its control;

(b) Each party has the obligation to use all means at its disposal to prevent action violating the truce [then in effect] by individuals or groups who are subject to its authority or who are in territory under its control;

(c) Each party has the obligation to bring to speedy trial, and in case of conviction to punishment, any and all persons within their jurisdiction who are involved in a breach of the truce;... .”[25]

However, these obligations were unfortunately not incorporated in the Armistice Agreements themselves.

The consideration of the activities of infiltrators in the Security Council did not shed much light on the legal side of the question. In interventions in the Security Council, general references were made to the Armistice Agreements, and the position of Israel was that the General Armistice Agreements with Jordan should be revised, as provided for in that instrument, and that the widespread infiltrations were an indication of the “obsolescence” of the armistice system.[26] The question raised by Egypt was whether infiltration across the demarcation line could be deemed to involve the Government’s responsibility and thus to constitute a violation of the General Armistice Agreement.[27] Reference was made to the views of Rosenne, who wrote in 1951 that at least in Europe,

“... [I]t is now recognized that as an armistice falls into the category of acts of State, individuals acting on their own responsibility and in circumstances in which the authority of a State cannot be established or is not implied, cannot be guilty of a breach of armistice, however much they may be guilty of an ordinary criminal offence.”[28]

What was really needed, in the view of Israel, was movement toward a definitive peace settlement. The infiltrators were not met with olive branches, but with gunfire, and Israel turned to a policy of taking retaliatory measures as a means of countering violence with violence. After one such retaliatory action by Israel at Qibya in 1953, the Security Council adopted a resolution censuring the action and—

“ 1. Takes note of the fact that there is substantial evidence of crossing of the demarcation line by unauthorized persons, often resulting in acts of violence, and requests the Government of Jordan to continue and strengthen the measures which it is already taking to prevent such crossings;

2. Recalls to the Governments of Israel and Jordan their obligations under Security Council resolutions and the General Armistice Agreement to prevent all acts of violence on either side of the demarcation line.”[29]

The practical wisdom to be derived from the difficulties that the parties to the Armistice had on this score is that special provisions should be inserted in an armistice or a cease-fire requiring a belligerent to take measures to prevent any infiltration or acts of violence across a demarcation line and to impose responsibility on a belligerent that allows such acts to take place. This is a counsel of perfection, however, and it is unlikely that the parties could readily be persuaded to take on such a heavy burden.

  • [1] Bastid, “Le Cessez-le-feu”, in Societe Internationale de droit penal militaire et de droit de la guerre,[Actes du] 6e Congres International, La Haye, 22—25 mai 1973 (1974), p. 19 at pp. 20—21; Hughes-Morgan, “The Cease-Fire”, id., p. 365; Oppenheim, International Law, Vol. 2 (7th ed., Lauterpacht,1952), p. 546; Levie, “The Nature and Scope of the Armistice Agreement”, in American Journal ofInternational Law, Vol. 40 (1956), p. 880 at p. 884.
  • [2] As cited note 2, supra.
  • [3] Stone, Legal Controls of International Conflict (1954), p. 644; Remarks of Mr. Eban (Israel),Security Council Official Records, Sixth Year, 549th Meeting (1951), pp. 2—24, UN Doc. S/PV.549(1951). Mme. Bastid suggests that since the 1950s, certain armistices, such as those in the Middle East,“edictent enfin des measures destinees au retablissement de la paix et creent des organes pour leur miseen oeuvre et leur controle” (op. cit., supra, note 70 at pp. 21—22).
  • [4] As cited note 23, supra.
  • [5] Remarks of Mr. Eban (Israel), Security Council Official Records, Sixth Year, 549th Meeting (1951), p. 9, UN Doc. S/PV.549 (1951).
  • [6] Security Council resolution 73 (1949), in Security Council Official Records, Fourth Year, Resolutions and Decisions, 1949, p. 8, UN Doc. S/INF/3/Rev.1 (1965).
  • [7] Security Council resolution 95 (1951), 1 Sep. 1951, in Security Council Official Records, SixthYear, Resolutions and Decisions, 1951, p. 10, UN Doc. S/INF/6/Rev. 1 (1965).
  • [8] Baxter, The Law of International Waterways (1964), p. 231. 78 See p. 332, infra.
  • [9] E.g., Fauchille, Traite de droit international public (8th ed., Bonfils, 1921), Vol. 2, pp. 1032-1033.
  • [10] Sibert, “L’Armistice dans le droit des gens”, in Revue generale de droit international public, Vol. 40(1933), p. 657 at p. 664.
  • [11] As cited note 48, supra.
  • [12] As cited note 29, supra.
  • [13] As cited note 26, supra.
  • [14] After the Evian Agreement for a cease-fire, concluded on 19 March 1962 and the vote on selfdetermination for Algeria held on 1 July 1962, France transferred the powers of sovereignty to the“Provisional Executive of the Algerian State”, pursuant to the Exchange of Letters and Declarationsadopted on 19 March 1962 at the Close of the Evian Talks, Constituting an Agreement betweenFrance and Algeria, signed at Paris and Rocher Noir, 3 July 1962; UNTS, Vol. 507, p. 25. See Flory,“La Fin de la souverainete fran^aise en Algerie”, in Annuaire frangais de droit international, 1962, p. 905.
  • [15] As cited note 29, supra.
  • [16] Art. 3, as cited note 32, supra.
  • [17] Egyptian-Israeli General Armistice Agreement, signed at Rhodes, 25 Feb. 1949, Art. 1, para. 2,UNTS, Vol. 42, p. 251 at p. 253.
  • [18] Art. 2, para. 2.
  • [19] Security Council Official Records, Sixth Year, 549th Meeting, pp. 17—18, UN Doc. S/PV.549 (1951).
  • [20] See E. Lauterpacht, “The Legal Irrelevance of the ‘State of War’”, in Proceedings of the AmericanSociety of International Law at its Sixty-second Annual Meeting (1968), p. 58, and Baxter, “The LegalConsequences of the Unlawful Use of Force under the Charter”, in id., p. 68.
  • [21] See Baxter, The Law of International Waterways (1964), pp. 224—228.
  • [22] Resolution 95 (1951), Security Council Official Records, Sixth Year, Resolutions and Decisions,1951, p. 10, UN Doc. S/INF/6/Rev.1 (1965).
  • [23] Baxter, op. cit., supra, note 91 at p. 231.
  • [24] Hashemite Jordan Kingdom-Israel: General Armistice Agreement, signed at Rhodes, 3 Apr.1949, Art. 3, para. 3, UNTS, Vol. 42, p. 304.
  • [25] Resolution 56 (1948), 19 Aug. 1948, Security Council Official Records, Third Year, Resolutionsand Decisions, 1948, p. 24, UN Doc. S/INF.2/Rev.1 (III) (1964).
  • [26] Remarks of Mr. Eban (Israel), Security Council Official Records, Eighth Year, 642nd Meeting,p. 4, UN Doc. S/PV.642 (1953).
  • [27] Remarks of Mr. Loutfi (Egypt), Security Council Official Records, Tenth Year, 694th Meeting,pp. 22-23, UN Doc. S/PV.694 (1955).
  • [28] Rosenne, Israel’s Armistice Agreements with the Arab States (1951), pp. 45-46.
  • [29] Resolution 101 B (1953), 24 Nov. 1953, Security Council Official Records, Eighth Year,Resolutions and Decisions, 1953, pp. 4-5, UN Doc. S/INF/8/Rev.1 (1965).
 
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