Violations of Agreements for the Suspension of Hostilities: Sanctions and Remedies

In the event that there is a violation of a treaty, either there may be action taken to enforce the treaty or if there has been a material breach, the rule[1] is that—

“A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”

Article 60 of the Vienna Convention on the Law of Treaties is thus consistent with Article 40 of the Hague Regulations providing that:

“Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.”[2]

This is, of course, a right that the aggrieved party has, but one which that party may desire not to exercise. The aggrieved party has an election whether to enforce the treaty or to denounce it.

This rule has equal application to general and limited armistices, to “suspensions of arms”, truces, and cease-fires, so far as customary international law in the absence of the Charter is concerned. The response to a violation of an agreement for the suspension of arms often has to be an all or nothing one, except if a commission of the belligerents or of neutral nations (or of a mixed character) has been set up to deal with violations of the armistice or other agreement. Judicial or other forms of legal proceedings to secure enforcement of the agreement or the payment of damages are obviously irrelevant in the context of war where violence and vulnerability call for fast responses by an aggrieved party. Moreover, however irresponsible States are in the international arena, groups of armed men (whether professionals or amateurs), military commands, political parties, and unrecognized political entitles are far more difficult to control and to bring to account. The only remedy when there appears to have been a breach of faith often presents itself as a simple resumption of hostilities.

The fact that, in the perception of many States, the General Armistice Agreements between Israel and the Arab States were still in force after the wars of 1956,

1967, and 1973, is somewhat surprising if these instruments are seen in a juridical vacuum in the absence of the Charter and outside the political context in which they have operated. In the first place, the fact that they were concluded with the assistance of the United Nations and that they have from time to time been affirmed by the United Nations has given them a special status. Second, they are the only rock of certainty to which States can return without putting the Arab States and Israel in a complete limbo of violence once more. It is true that the parties to the General Armistice Agreements often felt that a violation of a particular clause gave right to corresponding right not to comply with that provision. As the Secretary-General put it in 1956:

“From no side has it been said that a breach of an armistice agreement, to whatever clause it may refer, gives the other party a free hand concerning the agreement as a whole; but a tendency to regard the agreements, including the cease-fire clauses, as entities may explain a feeling that in fact, due to infringements of this or that clause, the obligations are no longer in a strict sense fully binding, and specifically that a breach of one of the clauses, other than the cease-fire clause, may justify action in contravention of that clause.”[3]

The Security Council, in the face of what it considered to be continuing violations of the agreements, nevertheless continued to affirm their application to the conflict and the duties of the belligerents under them. When, to take but one example, Israeli forces crossed into Syria in 1955, the Security Council recalled that it had already condemned military action in violation of the Armistices “whether or not undertaken by way of retaliation” and called upon the parties to comply with their obligations under Article 5 of the General Armistice Agreement.[4]

Even though, after the 1956 hostilities, Prime Minister Ben Gurion said that the General Armistice Agreement between Egypt and Israel is “dead and buried”,[5] Israel continued to regard the Agreements in force and appealed to their terms in the debates in the Security Council and in complaints to that body. We find the representative of Israel writing to the President of the Security Council in May 1967 that:

“Syria, as well as other signatories of General Armistice Agreements with Israel, is bound to observe scrupulously its obligations to prevent any crossings ofher border into Israel, and to refrain from the planning, organizing, executing, supporting and abetting of warlike or any other kind of aggressive activities, whether undertaken by regular or irregular forces, either by large military formations or by small groups of terrorists and saboteurs.”[6]

But just as Israel had long since ceased to participate in the meetings of the Mixed Armistice Commission with Egypt, so Syria in 1967 refused to continue with meetings of the Mixed Armistice Commission.[7]

After the 1967 war, the Secretary-General continued to point out that the Agreements contained a provision that they would remain in force “until a peaceful settlement between the parties is achieved”, that no action had been taken by the Security Council or General Assembly to change the applicable resolutions, and that the Agreements, although subject to modification by mutual agreement, could not be denounced by one party or the other.[8] However, Israel announced that it would respect the cease-fire but that it could not return to the “shattered armistice regime or to any system of relations other than a permanent contractually binding peace”.[9] Israel was pressing for a binding and definitive peace settlement and rejected the view, espoused by the Arab States, that a state of belligerency continued to exist, with hostilities only suspended by the Armistice regime. During and after the war of 1967, the Security Council showed in its resolutions a preoccupation with enforcement of the cease-fire and with the establishment of a just and lasting peace in the Middle East and did not refer to the General Armistice Agreements. Shortly before the outbreak of the 1973 war, the Security Council referred to the Armistice Agreement with Lebanon in condemning Israel for a violation of Lebanon’s territorial integrity and sovereignty and the forcible diversion of a Lebanese airliner.[10]

Following the war of 1973, the parties and the members of the Security Council were again preoccupied with bringing about a cease-fire, which, as noted above, was brought about on the basis of resolutions of the Security Council, as implemented by agreements signed by the belligerents in the presence of a United Nations representative. The cease-fires and disengagement agreements were secured through the good offices of the United States—a further instance of third-party participation in bringing about the conclusion of agreements on the suspension of hostilities.

The machinery of the Armistice Agreements having broken down and the demarcation lines no longer being of significance, there is comparatively little that can be salvaged from the wreckage of the Agreements by way of practical measures to maintain the suspension of hostilities. Regardless of the position in strict law, the only way to deal with the renewed outbreak of violence has been through the medium of such agreements as the cease-fire between Egypt and Israel concluded on 11 November 1973 and the disengagement agreement between Syria and Israel signed in May 1974[11]. The fact remains that the Armistice Agreements did not lose their force because of the outmoded law of material breach, but because a new situation had, through the use of force, supplanted the old one, and the Security Council was compelled to act in light of the new position.

It will be recalled that so far as violations of an agreement for the suspension of hostilities are concerned, the general rule is probably that of Article 41 of the Hague Regulations which is strictly applicable only to “armistices”:

“A violation of the terms of the armistice by private persons acting on their own initiative only entitles the injured party to demand the punishment of the offenders or, if necessary, compensation for the losses sustained.”[12]

The obligation to deal with wrongdoers should be performed by the State having jurisdiction over them, without the necessity of resort to a complaint from the adversary. Egypt took legal measures against the infiltrators violating the Armistice in the early 1950s.[13] France has in its Decree of 1 October 1966, “portant reglement de discipline generale dans les armees”, a provision that—

“Il... est interdit (aux militaires au combat):

De prendre sous le feu, de blesser ou de tuer un ennemi... avec lequel un accord de suspension d’armes a ete conclu.”[14]

No cases are known in which individuals have been tried as war criminals—that is to say, trial of an individual by the enemy forces—for violation of the terms of an armistice. However, there are such cases involving violations by individuals of the surrenders executed by Germany and Japan at the end of the Second World War. Several German naval officers were tried by British tribunals for the scuttling of U-boats after the termination of hostilities and in violation of the terms on which the surrenders had taken place.[15] The Netherlands tried several Japanese military personnel who had fought with the rebels, after the Japanese surrender, in what was then the Netherlands East Indies.[16] Twenty-one German nationals in the service of the German Government in China continued to engage in intelligence activities on behalf of Japan after the execution by Germany of an instrument of unconditional surrender. They were tried and convicted by a military commission in China. The United States Supreme Court dealt with the case on habeas corpus and was faced with the sole issue of whether the military commission had jurisdiction over the offence. It relied heavily on a passage by Oppenheim in concluding that the offence was well recognized in international law and that the military commission accordingly had jurisdiction:

“Any act contrary to a capitulation would constitute an international delinquency if ordered by a belligerent Government, and a war crime if committed without such order.”[17]

Such violation may be met by reprisals or punishment of the offenders as war criminals.[18] The reason why criminal responsibility may exist in cases of violations of armistices is that Article 35 of the Hague Regulations requires that “Once settled, they must be scrupulously observed by both parties”.

This is all well and good so far as individual offenders are concerned, but trials of hundreds of soldiers in the event of widespread violation of the terms of a capitulation would be abusive and inhumane. It is obviously a doctrine that must be kept under restraint. So also would the view that individuals taking up arms in violation of the terms of an armistice should not be treated as lawful belligerents entitled to treatment as prisoners of war—a position taken by certain German forces in the face of resistance activities in France and elsewhere. Perhaps the only way to make sense of the matter is to say that trials by the adversary of a few persons who resume or continue hostilities in violation of an agreement for the suspension of arms might be salutary, but that trials of large numbers of persons would not.

Perfidious acts in connection with armistices and capitulations are, of course, forbidden. For example, the British manual[19] suggests the illegality of misinforming an adversary that an armistice had been concluded when this was not the case, and it would likewise be perfidy to feign an act of surrender in order to put the adversary off guard and attack him once more. So also would be misuse of a flag of truce.

  • [1] Vienna Convention on the Law of Treaties, Art. 60, as cited note 59, supra.
  • [2] As cited note 59, supra.
  • [3] Report of the Secretary-General to the Security Council pursuant to the Council’s resolution of4 April 1956, on the Palestine Question, Security Council Official Records, 11th Year, Supplement forApril, May and June 1956, p. 30 at p. 31 (1956).
  • [4] Resolution 111 (1956), 19 Jan. 1956, Security Council Official Records, 11th Year, Resolutionsand Decisions, 1956, p. 1, UN Doc. S/INF/11/Rev. (1965).
  • [5] This statement was seized upon by the United Arab Republic as evidence of an “aggressivepolicy” by Israel. Letter dated 27 May 1967 from the representative of the United Arab Republic to thePresident of the Security Council, Security Council Official Records, 22nd Year, Supplement for April,May and June 1967, p. 124 (1967).
  • [6] Letter dated 22 May 1967 from representative of Israel to the President of the Security Council,UN Doc. S/7901 (1967), Security Council Official Records, 22nd Year, Supplement for April, May andJune 1967, p. 116 (1967).
  • [7] Report of the Secretary-General on the present inability of the Israel-Syrian Mixed ArmisticeCommission to function and the attitudes of the parties thereto, 1 Nov. 1966, UN Doc. S/7572(1966), Security Council Official Records, 22nd Year, Supplement for October, November andDecember 1966, p. 60; see also Bar-Yaacov, The Israel-Syrian Armistice: Problems of Implementation,1949-1966 (1967).
  • [8] Introduction to the Annual Report of the Secretary-General on the Work of the Organization,16 June 1966—15 June 1967, General Assembly Official Records, 22nd Session, Supplement 1A, p. 6,UN Doc. A/6701/Add.1 (1967).
  • [9] Remarks of Mr. Eban (Israel), Security Council Official Records, 22nd Session, 1375th Meeting,p. 3, UN Doc. S/PV.1375 (1967).
  • [10] Resolution 337 (1973), 15 Aug. 1973, Security Council Official Records, 28th Year, Resolutionsand Decisions, p. 10, UN Doc. S/INF/29 (1974).
  • [11] Agreement on Disengagement between Israeli and Syrian Forces, signed at Geneva, 31 May1974, Doc. S/1 1302/Add.1, Annex I (1974). Complaints were thereafter directed to the violation of the agreements of 1973 and 1974 and of theunderlying Security Council resolutions. See, e.g., letter dated 15 Aug. 1974 from the representative ofthe SyrianArab Republic to the Secretary-General, UN Doc. S/11451 (1974), Security Council OfficialRecords, 29th Year, Supplement for July, August and September 1974, p. 106; letter dated 15 Jan.1974 from the representative of Israel to the Secretary-General, UN Doc. S/1 1194 (1974), SecurityCouncil Official Records, 29th Year, Supplement for January, February and March 1974, p. 82.
  • [12] As cited note 2, supra.
  • [13] Remarks ofMr. Loutfi (Egypt), Security Council OfficialRecords, Tenth Session, 694th Meeting,p. 21, UN Doc. S/PV.694 (1955).
  • [14] Kiss, Repertoire de la pratique frangaise en matiere de droit international public, Vol. 6 (1969), p. 501.
  • [15] Scuttled U-Boat case (British Military Court 1946), United Nations War Crimes Commission,Law Reports of Trials of War Criminals, Vol. 1, p. 55.
  • [16] Id., Vol. 15, p. 132.
  • [17] Johnson v. Eisentrager, 339 U.S. 763, 766—767 (1950).
  • [18] See Bowett, “Reprisals Involving Resort to Armed Force”, in American Journal of InternationalLaw, Vol. 66 (1972), p. 1.
  • [19] Great Britain, War Office, The Law of War on Land being Part III of the Manual of MilitaryLaw (1958), para. 314.
 
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