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Reprisals Involving Recourse to Armed Force1

Published online by Cambridge University Press:  28 March 2017

Derek Bowett
Derek Bowett*
Affiliation:
Cambridge University
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Extract

Few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal. Although, indeed, the words “reprisals” and “retaliation ” are not to be found in the Charter, this proposition was generally regarded by writers2 and by the Security Council as the logical and necessary consequence of the prohibition of force in Article 2(4), the injunction to settle disputes peacefully in Article 2(3) and the limiting of permissible force by states to self-defense. The U.N. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, adopted by General Assembly Resolution 2625 (XXV) on October 24, 1970, contains the following categorical statement: “States have a duty to refrain from acts of reprisal involving the use of force.”

Type
Research Article
Information
American Journal of International Law , Volume 66 , Issue 1 , January 1972 , pp. 1 - 36
Copyright
Copyright © American Society of International Law 1972

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Footnotes

1

This essay was commissioned by the American Society of International law as the working paper of its study Panel on Reprisals and Retaliation in International Law. The author revised his paper to take account of the Panel 's discussion as well as important developments since the original version was written. Because of its significance, the article was referred to this Journal in its revised Panel form and is being run without attempting to update it further.

The paper focuses on the experience in the Middle East, both because of its richness and importance, and because of the extensive consideration given to that experience by the Security Council and other international organs.-Ed .

References

2 The literature on this point, though not very penetrating on account of the assumed authority of the proposition, is very extensive; the following is no more than a sample: Goodrich and Hambro, Charter of the United Nations 95–9’6, 102 (London: Stevens and Sons, 1949); Brownlie, International Law and the Use of Force by States, Ch. XI (Oxford University Press, 1963); Higgins, The Development of International Law through the Political Organs of the United Nations 202–205, 217–218 (Oxford University Press, 1963). Both Brownlie and Higgins cite additional authorities: Waldock, 81 Hague Academy, Recueil des Cours 475–494 (1952, II); Sørirensen, 101 ibid. 219 (1960, III); Skubiszewski, in Sørensen, Manual of Public International Law 754- 755 (New York: St. Martin’s Press, 1968). The authors maintaining a contrary view, i.e., accepting a continuing, permissible r61e for armed reprisals, are Colbert, Retaliation in International Law 203 (New York: King’s Crown Press, 1948); and Stone, Aggression and World Order 43, 94–98 (1958).

3 63 A.J.I.L. 415–443 (1969). For a critical reply to this article see Blum, , “The Beirut Raid and the International Double Standard. A Reply to Professor Richard A. Falk,” 64 ibid. 73–105 (1970)Google Scholar.

4 U.N. Security Council, Official Records, 19th Year, 1141st Meeting, pars. 82–83.

5 This condition is usually based on the Naulilaa arbitration (Germany-Portugal, July 31, 1928, 2 Int. Arb. Awards 1013), but the arbitrators give no authority for this and, indeed, in the earlier textbooks (and some later) there is little mention of this condition as a specific requirement: see Holland, Lectures on International Law 236–238 (1933); Westlake, International Law: Part II, 8–11 (1913); 2 Hyde, International Law 1660–1667 (1945). The emphasis was more upon the necessity for the act of reprisal in the sense that it had to have a lawful motive. As we shall see later in this article, there is little evidence that the Security Council today regards this condition as an essential prerequisite of reprisals, although it would scarcely pronounce on the issue since it is committed to the proposition that all reprisals involving the use of force are illegal.

6 This is the thesis ably argued by Brownlie, op. cit., Ch. XIII. It has many adherents, of all “persuasions,” but it has also been a thesis consistently adopted by the Communist bloc.

7 The author has developed this reasoning elsewhere: see Bowett, Self-Defence in International Law 187–193 (Manchester University Press, 1958). This reasoning also has many adherents.

8 Pakistan justified the entry of her troops into Kashmir in 1948 on this basis before the Security Council, an argument opposed only by India. Israel’s invasion of Sinai in October, 1956, and June, 1967, rested on the same argument. The O.A.S. has used the same argument in relation to the blockade of Cuba during the 1962 missile crisis. Several states have expressed the same argument in the Sixth Committee in connection with the definition of aggression and the U.N. itself invoked the principle of anticipatory self-defense to justify action by O.N.U.C. in Katanga in December, 1961, and December, 1963. Following the invasion of Czechoslovakia by the U.S.S.R. in 1968, it is permissible to assume that the U.S.S.R. now shares this view, for there certainly existed no “armed attack.”

9 Israel-Egypt, Feb. 24, 1949, 42 U.N.T.S. 251; Israel-Lebanon, March 23, 1949, ibid. 287; Israel-Jordan, April 3, 1949, ibid. 303; Israel-Syria, July 20, 1949, ibid. 327. It is the existence of these Armistice Agreements and successive cease-fire resolutions of the Security Council which preclude the argument (advanced by Blum, loc. cit. 76) that Israel’s actions are justified by reference to the status of belligerency and are not appropriately judged by reference to peacetime reprisal doctrines. The short answer to Blum is that, except as permissible self-defense, neither Israel nor any other state possesses belligerent rights under the U.N. Charter.

10 U.N. Security Council, Official Records, 3rd Year, 354th Meeting, p. 40; telegram from the Mediator.

11 Ibid., p. 43.

12 Ibid., Res. S/983.

13 Notably the Israeli attack on Qibya on Oct. 14–15, 1953, condemned by Security Council Res. S/3139 (ibid., Official Records, 8th Year, 642nd Meeting, p. 21); the Gaza incident of Feb. 28, 1955, in which an Israeli force attacked an Egyptian military camp in Gaza, condemned by Res. S/3378 on March 29, 1955 (ibid., 10th Year, 695th Meeting, p. 22); the Israeli attack on Syrian positions near Lake Tiberias on Dec. 11–12, 1955, condemned by Res. S/3538 on Jan. 19, 1956 (ibid., 11th Year, 715th Meeting, p. 26).

14 Ibid., 11th Year, Supp. for April, May, June, 1956, Doc. S/3596, par. 46.

15 Ibid., Official Records, 6th Year, 551st Meeting, p. 10.

16 Res. S/2322, ibid., 558th Meeting.

17 Ibid., 8th Year, 637th Meeting, pp. 15–38, statement by Mr. Eban. Note that, in this incident, Israel did not concede that the attack on Qibya was by Israeli regular armed forces but maintained that it was by border villagers, driven beyond endurance by Arab guerrilla attacks.

18 Ibid., 10th Year, 694th Meeting, p. 18. General Burns was then Chief of Staff of the U.N. Truce Supervision Organization.

19 See Eban’s answer on the 1955 Lake Tiberias incident: “Some members of the Security Council have referred to an apparent disproportion between the effects of the Israeli response and the dimensions of the simple incident preceding it. This, however, is not the true and valid comparison. The dimensions of Israel’s occasional reactions are more than matched by the accumulated effect of repeated incidents, of a constant state of tension, of hostility and of aggression” (10th Year, 713th Meeting, p. 19).

20 Ibid., 21st Year, 1321st Meeting, U.N. Doc. S/PV. 1321, p. 17.

21 U.N. Docs. S/PV. 1466, p. 48, S/PV. 1468, p. 21, March 27-April 1, 1969.

22 For example, China, ibid., 24th Year, S/PV. 1470, p. 27 (Es-Salt, 1969); U.K., ibid., 19th Year, 1109th Meeting, p. 4 (Yemen, 1964).

23 For example, China, ibid., 19th Year, 1166th Meeting, p. 6 (Kibbutz Dan, 1964); France, ibid., 21st Year, 1321st Meeting, S/PV. 1321, p. 2 (Samu, 1966); New Zealand, ibid., S/PV. 1322, p. 7; Netherlands, ibid., S/PV. 1323, p. 6; U.S.A., ibid., 23rd Year, S/PV. 1402, pp. 3–5 (Karameh, 1968); U.S.A., ibid., 23rd Year, S/PV. 1460, pp. 28–30 (Beirut airport, 1968).

24 See the U.K. view, ibid., 10th Year, 710th Meeting, p. 5, and U.S.A., p. 12 (Lake Tiberias, 1955); France, ibid., 23rd Year, S/PV. 1402, p. 22 (Karameh, 1968).

25 For example, U.S.A., ibid., 10th Year, 695th Meeting, p. 9 (Gaza, 1955); U.K., ibid., 10th Year, 710th Meeting, par. 36 (Lake Tiberias, 1955); Australia, ibid., 712th Meeting, par. 11; U.S.A., ibid., 17th Year, 999th Meeting, pars. 100–101 (Lake Tiberias, 1962).

26 For example, China, ibid., 17th Year, 1003rd Meeting, p. 3 (Lake Tiberias, 1962); U.K., ibid., 1003rd Meeting, p. 7; Pakistan, ibid., 23rd Year, S/PV. 1402, pp. 18–20 (Karameh, 1968). And see Security Council Res. 262 (1968), 265 (1969), 280 (1970).

27 Ibid., 19th Year, 1109th Meeting, p. 4.

28 Ibid., 1106th Meeting, p. 14, 1107th Meeting, p. 6: the delegate was Mr. Pachachi of Iraq.

29 U.N. Doc. S/5649, adopted at the 1111th Meeting on April 9, 1964, by 9 votes to 0, with two abstentions (U.K. and U.S.A.).

30 Ibid., 19th Tear, 1140th and 1141st Meetings, Aug. 5–7, 1964.

31 Ibid., 1140th Meeting, p. 9, and 1141st Meeting, p. 15.

32 Ibid., 1141st Meeting, p. 4.

33 Letter from U.S.S.R. to Secretary General, transmitting the views of the D.R.V., U.N. Doc. S/5888, ibid., Supp. for July, August and September, 1964, p. 170.

34 Ibid., 1140th Meeting, p. 7. And note that the U.K. fully supported the U.S. argument of self-defense: 1141st Meeting, p. 12.

35 S/Res/273 (1969).

36 For Israeli reliance on this doctrine, see Le Monde, April 20, 1968, and New York Times, Aug. 7, 1968.

37 Although, interestingly enough, in relation to the Israeli incursions into Lebanese territory in May and September of 1970, Israel reverted to the specific claim of self-defense, this was not accepted by the Security Council (S/Res/280 and S/Res/285 (1970)).

38 The Israeli Chief of Staff, General Yetzhak Bar Lev, was reported to have stated the purpose as being “to make clear to the other side that the price they must pay for terrorist activities can be very high”; see New York Times, Jan. 5, 1969, Sec. 4, p. 1. However, Ambassador Rosenne, in the Security Council, did raise the justification of self-defense (see Doc. S/PV. 1460, pp. 22–23). It is of interest to note that the Israeli practice of placing security guards on El Al aircraft (one of whom killed an Arab guerrilla in the Zurich incident) does not seem to have met with any protest and can thus be regarded as legitimate self-defense. This practice highlights the difference between defense of the aircraft, which is clearly permissible, and the broader concept of self-defense which the Council rejects.

39 The large-scale raid across the Red Sea, into Egyptian territory, on Sept. 8–9, 1969, was reported to have been “to demonstrate again to the Egyptians and other Arabs their military incompetence and the boomerang folly of trying a war of attrition”; see The Times Newspaper, Sept. 11, 1969, p. 8.

40 For example, there were air strikes by Israel against Jordan on Feb. 11, March 16, March 26, April 20–21, 1969: of these only the Es-Salt raid on March 26 was referred to the Council.

41 Ibid., 9th Year, 665th to 671st Meetings; there was no vote on the Lebanese draft resolution condemning Israel for “aggression” (U.N. Doc. S/3209) and no discussion of reprisals.

42 Ibid., 23rd Year, Docs. S/PV. 1401–1407, March 21–24, 1968.

43 This was an Israeli complaint against Egypt: see letter dated April 4, 1955 (Doc. S/3385, Supp. for April, May and June, 1955, p. 1). The debates are in 10th Year, 697th and 698th Meetings.

44 Egyptian complaint of Israeli attack on Khan Younis, killing 10 soldiers and 25 civilians (Doc. S/3431, Supp. for July, August, September, 1955, p. 14). The debates are in 10th Year, 700th Meeting.

45 Both Israeli (Docs. S/8203, S/8204 and S/8298) and Egyptian complaints (Docs. S/8205 and S/8207), Supp. for October, November and December, 1967, pp. 188, 190–192. The debates are in Docs. S/PV. 1369–1371, Nov. 24 and 25, 1967. The Arab guerrilla attack on Eilat and the Israeli reprisal against Aqaba suggest a “tit-for- tat,” proportionate reaction which apparently Jordan felt not worth referring to the Council: see Keesing’s Contemporary Archives, 1969, p. 23327.

46 Ibid., 19th Year, 1162nd, 1165th-1169th Meetings, especially the U.K. (1165th Meeting), France (1166th Meeting) and Norway (1166th Meeting). However, China (1166th Meeting) did find the Israeli reaction disproportionate.

47 U.N. Docs. S/5649, adopted April 9, 1964, and S/Res/268/1969, adopted July 28, 1969; both Britain and Portugal retaliated against repeated armed incursions.

48 This is clear from the debate on the Qibya incident of October, 1953, the Lake Tiberias incident of 1955 and, following the Karameh incident of March, 1968, Security Council Res. 248 (1968) specifically recalled the government’s obligation to “ensure the safety, welfare, and security of the inhabitants of the areas” as a preliminary to deploring the loss of life. After the Es-Salt raid of August, 1968, in the debates preceding the condemnation of Israel, China and Senegal emphasized the fact that the raid caused civilian deaths (U.N. Docs. S/PV. 1435, pp. 63–65, S/PV. 1437, p. 8). So also after the Es-Salt raid in March, 1969, did Spain (U.N. Doc. S/PV. 1469, p. 27). Note also the U.S. statement after the Pleiku incident in February, 1965, when, following a Viet Cong attack on a U.S. airfield near Pleiku, destroying aircraft and killing U.S. servicemen, the “appropriate reprisal action,” involving an attack on targets around Dong Hoi (50 miles north of the 17th parallel), was declared to be “carefully limited to military areas which are supplying men and arms for attacks in South Viet-Nam”; Press Release dated Feb. 7, 1965, 52 Department of State Bulletin 238 (1965).

49 Art. 33. T.I.A.S., No. 3365.

50 21st Year, 1288th to 1295th Meetings; draft resolution S/7437 condemning Israel was not adopted.

51 The attack on the Ghor Canal is reported in the Times Newspaper, Aug. 11, 1969; the Israeli Army is reported to have claimed this to be a reprisal for guerrilla attacks emanating from Jordanian territory.

52 Security Council Res. 262 (1968), adopted unanimously on Dec. 31, 1968. And note that, prior to its air strike against the Yemen in 1964, the British first dropped warning messages to minimize loss of life: the British action was nevertheless condemned.

53 For a full discussion of this incident see Falk, loc. cit. 415–420. A parallel is to be found in the Soviet argument in the Security Council after the Pleiku reprisal in February, 1965: “. . . who gave the U.S. the right to retaliate for the actions of the guerrillas in South Vietnam by bombing the territory of a third country—the Democratic Republic of Vietnam?” (U.N. Doc. S/6178, 20th Year, Supp. for January, February and March, 1965, p. 48).

The validity of the argument of course depends upon the proof of responsibility, and Schick, “Some Reflections on the Legal Controversies concerning America’s Involvement in Vietnam,” 17 Int. and Comp. Law Q. 953 at 981 (1968), says: “No evidence has been produced by the American Government that these attacks were committed by North Vietnamese regulars, or with the knowledge and the approval of the Government of North Vietnam.”

54 U.N. Doc. S/8946, letter dated Dec. 29, 1968, from Israel to the President of the Security Council.

55 The U.S. delegate stated: “Nothing that we have heard has convinced us that the Government of the Lebanon is responsible for the occurrence in Athens . . .” (U.N. Doc. S/PV. 1460, pp. 28–30).

56 Res. 228 (1966).

57 See the Financial Times, Nov. 14, 1966. Prime Minister Eshkol’s speech in the Knesset on Oct. 17, accusing Syria, is summarized in Keesing’s Contemporary Archives, 21817A, Jan. 14–21, 1967.

58 Feron, James, “New Israel Strategy Seen in Raid Near Damascus,” New York Times, Feb. 25, 1969, p. 3 Google Scholar.

59 Loc. cit. 420.

60 Although, to the author’s knowledge, no proposal was presented to the Security Council to condemn the Damascus raid.

61 For a useful account of Arab guerrilla organizations, their interrelationships and positions vis-à-vis Arab governments, see The Observer (London), May 18, 1969. The Cairo meeting of the Palestine National Council in February, 1969, virtually gave Al Fatah control of the Palestine Liberation Organization and specifically rejected the Security Council resolution of Nov. 22, 1967: see Keesing’s Contemporary Archives, 1969, 23328. However, the Popular Front for the Liberation of Palestine (PFLP) and the Palestine Liberation Army (PLA) boycotted that meeting, so that unified control is far from achieved. There are reports of joint operations by Al Fatah and the PLO: see Egyptian Gazette, May 26, and July 2, 1968.

62 An Arab Eastern Military Command, ostensibly designed to control Jordanian, Syrian and Iraqui forces, had been set up in 1968 (see Keesing’s Contemporary Archives, 1969, 23328), but there is as yet no concrete evidence that these forces are actually controlled by a unified command: the command has been described as “embryonic” (Daily Telegraph, Dec. 7, 1968).

63 S/Res. 240 (1967), adopted unanimously Nov. 25, 1967: for the debates see U.N. Docs. S/PV. 1369–1371, Nov. 24 and 25, 1967.

64 See the contention of Czechoslovakia (19th Year, 1141st Meeting, p. 4). In fact, while it was known that the North Vietnamese claimed a 12-mile territorial sea, the U.S. did not recognize a territorial sea beyond 3 miles and the U.S.S. Maddox was apparently patrolling 11 miles offshore: see Senator Fulbright in 110 Cong. Rec. (1964) 18407, Aug. 6, 1964.

65 Ibid. 18408.

66 See, after the Es-Salt raid of March, 1969, Spain (U.N. Doc. S/PV. 1469, p. 27), and after the earlier Es-Salt raid of August, 1968, Denmark (U.N. Doc. S/PV. 1436, p. 52).

67 Lord Caradon (U.K.) after the Karameh incident of March, 1966, stated: “Violence solves nothing. Violence does not prevent violence. Violence breeds more violence” (U.N. Doc. S/PV. 1403, p. 3). To the same effect, at an earlier stage, see the Netherlands representative (U.N. Doc. S/PV. 1323, pp. 6–7).

68 Special Report of the Secretary General on the critical situation in the Suez Canal Sector (Doc. S/9171), April 21, 1969, par. 2. See report by the Secretary General on the Activities of the Special Representative to the Middle East (Doc. S/10070, Jan. 4, 1971) and Further Report by the Secretary General on the Activities of the Special Representative to the Middle East (Doc. S/10070/Add. 2, March 5, 1971).

69 P. 9 above.

70 The raid on Es-Salt was conceived as a “warning” to the Jordanian Government about the consequences of aiding saboteurs and infiltrators. New York Times, Aug. 6, 1968. Similarly, the Israeli attack on Irbid was regarded as a “reminder of Jordan’s vulnerability.” Financial Times, Sept. 18, 1968. The Beirut raid was also certainly designed to teach a message about the price of encouragement of guerrilla attacks on Israeli aircraft. Le Figaro, Dec. 30, 1968.

71 Especially Arts. 111(2) and (3) and IV(3). As early as the debate on the Qibya incident, Mr. Eban (Israel) emphasized the relevance of the agreements to this kind of activity and referred to Art. IV(3) as “the crux of the agreement. Without it Israel’s coastal plain becomes an inferno of chaos and lawlessness.” (8th Year, 637th Meeting, p. 17.)

72 U.N. Doc. S/983.

73 U.N. Doc. S/3139/Rev. 2, adopted at the 642nd Meeting.

74 See statement by Ambassador Comay (Israel), U.N. Doc. S/PV. 1323, Nov. 18, 1966 (although, at that stage, the argument was used as one supplementary to, and not in substitution for, the argument based on the Armistice Agreements). He there cited General Assembly Res. 2131 (XX): “No State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of . . . another State.”

75 Hence, in the debate on the Karameh incident of March 21, 1968, the U.S. (U.N. Doc. S/PV. 1402, pp. 3–5) and the U.K. (U.N. Doc. S/PV. 1403, p. 3) condemned all breaches of the cease-fire: in the debate after the Es-Salt raid of March 26, 1969, the U.S. and the U.K. in fact abstained on the vote condemning Israel for the reprisal, on the ground that the resolution failed to condemn the attacks by Arab guerrillas which had precipitated it (U.N. Docs. S/PV. 1472, pp. 21–22, 23; S/PV. 1473, p. 56). It may be noted that S/Res. 270 (1969) of Aug. 26, 1969, while condemning Israel for the reprisal by air attack, did in fact contain a paragraph “deploring all violent incidents in violation of the cease-fire,” so there is some evidence that the U.K./U.S.A. viewpoint is gaining ground. The Israel Government has always taken the view that guerrilla activities are breaches of the cease-fire. See Mr. Eshkol’s speech to the Knesset, reported in Egyptian Gazette, March 26, 1968.

76 U.N. Doc. S/PV. 1437, p. 22. And note that the latest Soviet proposal on the definition of aggression expressly excludes the use of force in the exercise of the right of self-determination (U.N. Doc. A/AC 134/L. 12 of Feb. 27, 1969).

77 France has stated: “Nor can we agree that it is possible to speak of necessary measures for the security of the territory and population under the jurisdiction of Israel, because we cannot recognize jurisdiction established by occupation” (U.N. Doc. S/PV. 1402, p. 22). See also Pakistan (U.N. Docs. S/PV. 1435, p. 36 and S/PV. 1468, p. 21); Senegal (U.N. Doc. S/PV. 1436, pp. 63–65); Zambia (U.N. Doc. S/PV. 1469, p. 51).

78 However, it cannot be said that the Security Council has reacted with great energy to Israel’s complaint of guerrilla attacks and hijacking of Israeli aircraft. Possibly the matter is not regarded as one with which the Council can deal easily and certainly the Secretary General seems to have assumed ICAO was the more competent: see Eban-U Thant exchange of letters, Feb. 20 and 26, 1969 (U.N. Monthly Chronicle, March, 1969, pp. 12–14).

79 For details of clashes between Lebanese forces and Syrian-backed guerrillas within the Lebanon in April and May, 1969, see Keesing’s Contemporary Archives, 1969, 23520. King Hussein had rejected the suggestion that he is under any duty to halt guerrilla activities and had justified those activities (New York Times, March 24, 1968). In the debate on the Es-Salt raid of March 26, the Israeli representative, Mr. Tekoah, alleged complete complicity between the Jordan Government and the guerrilla organizations, citing an agreement between them of Nov. 16, 1968. In 1970 in the debates on the Israeli incursions into the Lebanon in May and September, Mr. Tekoah alleged that similar agreements had been made between the Lebanese Government and guerrilla organizations. This position in Jordan had changed quite radically by the summer of 1970. On July 19, 1970, the Jordanian Government announced that, at the culmination of a series of clashes between its forces and guerrilla forces, it had destroyed the Palestinian guerrilla organization on Jordanian territory and all its bases. The Times Newspaper, July 20, 1970.

80 This is not a question to which lawyers can give persuasive answers. However, there would be advantage in a strategic study of the effectiveness against guerrilla activities emanating from abroad of measures of self-defense confined to the target state’s own territory. Possibly, variations in circumstances (terrain, size of respective forces, length of frontier, etc.) are such as to permit no generalizations. But obviously a comprehensive study which demonstrated that self-defense, narrowly construed, is in general ineffective against guerrilla activities would strengthen the case for reprisals considerably. Apparently Israel had seriously considered sealing off the 50-mile cease-fire line with Jordan by a defensive barrier, a technique once regarded as impractical (James Feron in the Herald Tribune, Dec. 20, 1967).

81 U.N. Doc. A/AC. 134/L, 16 of March 24, 1969.

82 Above, p. 7.

83 The Vienna Convention on the Law of Treaties, Art. 53, requires the development of a new peremptory norm to change an earlier peremptory norm.

84 Above, p. 1.

85 Falk, loc. cit. 436. He is here discussing the resolution following the Beirut raid (S/Res/262 (1968)) and presupposes that it was technically a recommendation and not a “decision” binding by virtue of Art. 25 of the Charter. And he concedes (p. 463, note 60) that the distinction between decisions and recommendations is not very apt when one is really dealing with a formal resolution of censure; it would be more apt to par. 4 of the resolution in which the Council considered that Lebanon was entitled to compensation.

86 U.N. Doc. S/PV. 1462, p. 52.

87 The U.K. could, of course, maintain that a similar “anti-colonialist” bias lay behind the Council’s condemnation of her action in the Yemen reprisal in 1964; and the U.S. would certainly find a general bias against her on any Viet-Nam incident. So, too, would Portugal in respect of the Council’s condemnation of the attacks on Zambia (S/Res/268 (1969)), on Senegal (S/Res/273 (1969)), and on Guinea (S/ Res/290 (1970)).

88 U.N. Doc. S/PV. 1401, p. 4: statement on March 21, 1968, in the course of the debate on the Karameh incident.

89 Israel declined to participate in the Syrian-Israeli MAC after 1951 and gave as her reason that she could no longer rely on the impartiality of the Chairman. Even if this was justified, the fact still remains that, on the whole, the MAC’s tended to find Israel responsible more frequently than the other parties for breaches of the Armistice.

90 See Prime Minister Eshkol’s statement to the Israeli Cabinet on Nov. 27, 1966: “The majority in the Security Council ignored the causes of the tension that exists on Israel’s borders and dealt unilaterally with the results of one incident alone. . . . So long as the Security Council has not adopted effective measures to stop the aggressor, it is the duty and the right of an attacked State to defend itself . . .” (Keesing’s Contemporary Archives, 1967–8, 21819). The allegation of “one-sidedness” is to some extent supported by the abstentions of members like the U.S.A. and U.K. which have opposed the Council’s refusal to condemn guerrilla activities leading to Israeli reprisals (see above, note 75).

91 Mr. Eban suggested that anti-Jewish discrimination could alone explain Israel’s isolation: “I have no other explanation for the fact that the Soviet Union, which invaded Czechoslovakia, can condemn alleged Israeli ‘aggression’ at the U.N. without the public gallery bursting into laughter” (Time Magazine, Jan. 10, 1969, p. 28).

92 Blum, loc. cit. 92, regards even the Pope as biased, taking the somewhat uncharitable view that the Pope was influenced by the large numbers of Roman Catholics in the Lebanon.

93 This is the same kind of choice made by the U.S.S.R. over Hungary and Czechoslovakia, or by France and the U.K. over Suez, or the U.S. over Viet-Nam: the loss of public sympathy is not dependent on Security Council condemnation, but it is surely aggravated by it.

94 Security Council Res. 95 (1951) and 118 (1956).

95 U.N. Doc. S/7498, adopted on Nov. 25, 1966, envisaged “more effective steps as envisaged in the Charter to ensure against the repetition of such acts.” S/Res. 270 (1969), following the August, 1969, air attack on South Lebanon, referred specifically to the possibility of “further and more effective steps as envisaged in the Charter to ensure against repetition of such acts.” Also S/Res. 268 (1969), condemning Portugal for the attack on the Zambian village of Lote, threatened “to consider further measures” if Portugal continued raids on Zambia. Successive threats of sanctions, never implemented, can do little to enhance the reputation of the Security Council and were best not uttered at all.

96 Apparently the threat by the U.S. to cease economic aid to Israel was the means whereby the Israeli project for diverting the River Jordan in 1953 was stopped. Burns, Between Arab and Israel 11 (New York: Obolensky, 1963).

97 For a summary of the arms race in the Middle East after June, 1967, see Hurewitz, Middle East Politics: The Military Dimension 484–488 (New York: Praeger, 1967). The lack of any coherent policy among Council members is evident from the U.S. sale of 50 F.4 Phantom jets to Israel and France’s embargo on fighter aircraft and spares to Israel: see the New York Times, Dec. 28, 1968, Jan. 12, and July 11, 1969.

98 This eventuality might also arise if, in due course, a peace settlement is agreed between the states of the region but is rejected by the guerrilla movements; it might be that these guerrilla movements would remain as the only recalcitrant elements in an otherwise agreed settlement and, therefore, that sanctions would have to be applied to them. The various guerrilla organizations appear to find common ground in their rejection of the Security Council resolution of Nov. 22, 1967.

99 Pp. 8–14 above.

100 Loc. cit. 441–442.

101 Pp. 20–21 above.

102 Pp. 13–15 above.

103 Pp. 16 above.

104 Pp. 11–12 above.

105 Pp. 12–13 above.

106 Pp. 20–21 above.

107 Pp. 19–20 above.

108 One cannot exclude the possibility that organs of regional arrangements will afford other organs of review in situations arising between members. The El Salvador- Honduras conflict of July, 1969, the “football war,” would provide a possible situation of this kind and, in fact, O.A.S. mediation was accepted.

109 A useful description of the observer functions of these two organs can be found in Wainhouse, International Peace Observation (Baltimore: The Johns Hopkins Press, 1966), and in Burns, Between Arab and Israeli (New York: Obolensky, 1963). For a brief description of these and other U.N. fact-finding bodies see Report of the Secretary General on methods of fact-finding, U.N. Doc. A/5694, May 1, 1964.

110 The “neutral” resolution proposed by the U.S. and U.K. after the Kibbutz Dan incident in November, 1964 (U.N. Doc. S/6113, 19th Year, Supp for Oct., Nov. and Dec, 1964, p. 318), was largely because of inadequate facts (see U.K., 1165th Meeting, p. 13) and, in the event, no resolution at all was adopted. Similarly, after the fighting in the Lake Tiberias area in March, 1962, and in face of an inconclusive report from the UNTSO Chief-of-Staff Von Horn (U.N. Doc. S/5102 and Add. 1), the U.K. representative spoke of “the miserable paucity of hard facts on which to base a complete and just assessment of where the balance of right and wrong lies . . . This, of course, is absolutely no fault of the Truce Supervision Organisation, which has been severely handicapped in the exercise of its functions . . .” (17th Year, 1003rd Meeting, p. 6).

111 Res. 289 (1970), U.N. Doc. S/10009 and Add. 1.

112 For the Secretary General’s proposal for observers on the Lebanon border, see an exchange of letters dated Aug. 16, 1969, Aug. 18 (Lebanon), and Aug. 25 (Israel): Israel rejected the proposal because it was made on the basis of the 1949 Armistice Agreement. The U.S. abstained from voting on S/Res. 285 calling for the withdrawal of Israeli forces from Lebanese territory on the ground that, because UNTSO did not operate on that border, the Security Council lacked an objective report of the facts.

113 For the view that fact-finding cannot be objective and is not necessary to prevent recurrence (and that the allocation of blame is undesirable), see Franck, and Gold, , “The Limits of Perceptual Objectivity in International Peace Observation,” in The Middle-East Crisis: Test of International Law, 33 Law and Contemporary Problems 183–193 (1965)Google Scholar. This argument appears to rely on the neuro-chemistry of visual perception and, as there stated, is totally unconvincing to this author. No lawyer would claim complete accuracy for any technique of adducing evidence. Indeed, legal systems involve rules of evidence and techniques of proof and cross-examination which assume unreliability of witnesses, etc., but which equally assume that, by these rules and techniques, it is possible to weigh evidence and arrive at a reasonably accurate version of the facts. This author does not accept that neuro-chemistry has demonstrated the falsity of that assumption and even less that the conclusion that it is unproductive to assess blame is justified in situations like the Middle East.

114 For detailed argument on this point, demonstrating how, with terms of reference dependent solely on the agreement of the parties, it becomes possible for the parties to frustrate the supervision machinery, see Wainhouse, op. cit. 268–269, 272. This is not to suggest that, as a peacekeeping organ, an observer mission may not need the consent of the host state. The contention advanced above is that, once consent is given and agreement secured to terms of reference, these terms of reference should be contained in a Security Council resolution, and be interpreted by the Security Council.

115 Many disputes of this character arose out of the Arab-Israeli Armistice Agreements. For a useful summary of the dispute over the Israeli project to drain Lake Huleh, which also involved a dispute on the competence of the MAC, see Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary 86–99 (London: Oxford University Press, 1969).

116 This was the case with the Arab-Israeli MAC’s: see Wainhouse, op. cit. 272.

117 Thus, observers should be accorded the right to question civilians, army officers, government officials, etc. Refusal to testify or to allow such testimony to be taken would be made a matter for report to the review organ which would be free to draw its own conclusions. This extensive power of investigation would also suggest that military officers, such as the UNTSO observers, might usefully be supplemented by civilian international officials with police or legal training.

118 By a note of Oct. 5, 1956, Israel informed the Chief-of-Staff of UNTSO that observers had no permission to investigate incidents occurring within Israel: see Burns, op. cit. 172. Obviously, this restriction is crippling if it is to be applied to guerrilla activities. For Security Council insistence on full freedom of movement, see Res. S/3575 and S/3605.

119 For UNEF’s limited power to apprehend infiltrators in a zone 500 meters from the ADL (and only on the Egyptian side) and, after interrogation, to hand them over to local police, see UNEF: Summary Study of the Experience derived from the establishment and operation of the Force, Report of the Secretary General, U.N. Doc. A/3943, Oct. 9, 1958.

120 P. 4 above.

121 The Commission on Human Rights, operating under the European Convention on Human Rights, is such a body which, although not concerned with reprisals, might offer a useful model: its reports are reviewable by the European Court of Human Rights if appeal is made to that body, and, ultimately, by the political organ, the Council of Ministers.

122 Eytan, The First Ten Years 99–100 (London: Wiedenfeld and Nicholson, 1958). Mr. Eytan was the Director General of the Israeli Foreign Ministry.