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Published online by Cambridge University Press: 07 July 2009
In December 1968 Israeli forces launched an attack on Beirut Airport, claiming as justification, inter alia, Lebanese responsibility under international law for a number of incidents involving damage to life and property caused, it was alleged, by groups operating from the Lebanon 1). The action, which was the culmination of a long series of attacks by Arab groups, and similar earlier reactions, received widespread criticism, and have had far-reaching political consequences, but in contrast there has been little legal analysis of the underlying problems raised by the existence and activities of private groups operating from one country with violent acts against another country or of the remedies available to the State attacked. The political immediacy of these incidents has even led writers to employ circumlocutions or arbitrary cumulations of terms in order, it seems, to avoid committing themselves. In an article discussing the Beirut raid 2) Falk suggests that the language used to characterize acts of violence by non-State groups is either cumbersome or implies a degree of sympathy with, or antipathy to, such activities. He therefore uses such terms as “terrorist”, “guerrilla activity”, “liberation movement” and “freedom fighters” interchangeably. In a reply 3), Blum claims that “guerrilla” is “devoid of implying political values” and uses the word throughout 4).
1. The incident which was claimed as the immediate cause of the retaliatory action was an attack on December 26, 1968, by two members of the Popular Front for the Liberation of Palestine upon an El Al plane at Athens.
2. Falk, Richard A., “The Beirut Raid and the International Law of Retaliation”, 63 AJIL (1969) p. 415.CrossRefGoogle Scholar
3. Blum, Yehuda Z., “The Beirut Raid and the International Double Standard. A Reply to Professor Richard A. Falk”, 64 AJIL (1970) p. 73.CrossRefGoogle Scholar
4. “Guer(r)illa. The original spelling is with –rr–, not –r–; and the original meaning is not a person, but a kind of fighting, guerrillero being the word for the person. But the –r– is four times as common in the OED quotations, and we should assert our right to spell foreign words as we choose when we have adopted them. And as to the meaning, the phrase g. warfare is now so firmly established in place of g. itself that the use of g. as a personal noun may be considered almost an inevitable back-formation from it. The best course is to accept the spelling guerilla, and the sense (as old as Wellington's dispatches and still very much alive) ‘irregular fighter’.” Fowler's Modern English Usage, 2nd.ed. (1965).Google Scholar
5. Manual García-Mora, R., International Responsibility for Hostile Acts of Private Persons against Foreign States, (1962) p. 109.Google Scholar
6. See the comments of the United Kingdom submitted to the Sixth Ctee of the General Assembly, 1952–53, A/2162, as to the inadequacy of the term “terrorist activities” and “calculated to foment civil strife” in the Draft Code.
7. Compare, for example, the language used by Lauterpacht, in “Revolutionary Activities by Private Persons against Foreign States”, 22 AJIL (1928) p. 105.CrossRefGoogle Scholar
8. Burleigh Cushing, Rodick, The Doctrine of Necessity in International Law (1928) pp. 34–36.Google Scholar
9. In particular the Ardeatine Caves Case. See below, footnote 54.
10. See p. 45.
11. The question of extradition and asylum for air piracy was considered at the 1970 Conference of the ILA at the Hague, where it was suggested that such an act “should not be regarded as sufficient justification for the granting of territorial or diplomatic asylum, or for the refusal of a request for extradition on the ground that such a crime is a political crime or has been committed with political motives.” (Resolution submitted by the Committee on Piracy (Sea and Air) but not adopted).
12. Baxter, Richard R., “So-Called Unprivileged Belligerency, Spies, Guerrillas and Saboteurs”, 28 BYIL (1951) p. 323 at p. 333Google Scholar, where ‘guerrilla’ is said to be “most usefully applied in a legal context to armed hostilities by private persons or groups of persons who do not meet the qualifications established in Art. 4 of the Geneva Prisoners of War Convention of 1949 or corresponding provisions of the earlier Conventions”.
Emile, Giraud, “Le Respect des Droits de l'Homme dans la Guerre Internationale et dans la Guerre Civile”, Revue de Droit Public et de la Science Politique en France et à l'Etranger (1958) p. 613 at p. 655.Google Scholar
Ford, W.H., De Volkenrechtelijke Positie van Verzetslieden, (1955)Google ScholarMohamed Ali v. Public Prosecutor 1968 3 All.E.R. p. 488 (Privy Council on appeal from the Federal Court of Malaysia), where two members of the Indonesian armed forces, who committed an act of sabotage in Singapore in civilian clothes and were also captured in civilian clothing, were held not to be entitled to treatment as prisoners of war under the Geneva Convention, and the conviction for murder was upheld.
The Military Prosecutor v. Omar Mahmud Kassem and others (Military Court sitting in Ramallah), reproduced in Law and the Courts in the Israel-Held Areas, Faculty of Law of the Hebrew University of Jerusalem, January 1970, at p. 17. After an exhaustive examination of the requirements for entitlement to protection as a prisoner of war, the Court held that certain mem members of the “Organization of the Popular Front for the Liberation of Palestine” were not so entitled. See below, p. 48.
13. Moore, , Digest of International Law Vol. 7 pp. 908–934Google Scholar; Lauterpacht, op.cit. p. 111 ff; Brownlie, , “International Law and the Activities of Armed Bands” 7 ICLQ (1958) p. 712 at p. 723CrossRefGoogle Scholar; Brownlie, , “Volunteers and the Law of War and Neutrality”, 5 ICLQ (1956) p. 570.CrossRefGoogle Scholar
14. Report of the Committee on Security Questions to the General Commission of the League of Nations Conference on the Reduction and Limitation of Armaments (Politis, Rapporteur), (1933) Doc.DC/CG. See below, p. 49
15. For an extensive list of such agreements see Brownlie, , op.cit. 7 ICLQ (1958) at pp. 719–722.Google Scholar
16. The Council of the League, in a resolution of July 19, 1922: “Expresse(d) its hope for a satisfactory conclusion to the efforts made by the interested Governments to put an end, by a direct agreement, to a situation which may become dangerous to peace …”. L of N Official Journal, No. 8 (part 11) Aug. 1922, pp. 795–803.
17. Convention for the Prevention and Punishment of Terrorism, November 13, 1937, Geneva; L of N Doc. C.546(1) M.383(1); Hudson, , International Legislation, Vol. 7, p. 862Google Scholar; van Schelven, C.M.E., Het Verdrag Nopens Bestrijding van Terrorisme (1938).Google Scholar
18. Sixth Ctee. VI Sess. A/C6/SR 251 1951–52; Sixth Ctee. VII. Sess. A/C6/SR 329 1952–53; Sixth Ctee. IX Sess. A/C6/SR 403 1954; Sixth Ctee. XII Sess. A/C6/SR 514 1957; Special Ctee on the Question of Defining Aggression: Report 1953 A/2638 and Report 1956 A/3574.
See in general Stone, J.Aggression and World Order (1958)Google Scholar; Report of the Secretary-General on the Question of Defining Aggression, (1952) A/2211; Quincy, Wright, “The Definition of Aggression“, 50 AJIL (1956) p. 514Google Scholar; Röling, B.V.A., “The Question of Defining Aggression” in Symbolae Verzijl, (1958) p. 314Google Scholar. These are not the only instances of these problems being discussed, in a legal context, before the United Nations. After a long period of quiescence the Special Committee has resumed its labours (see in particular the Report for 1968, U.N. Doc. A/7185), and the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States has discussed the matter. See the Reports A/5746 (1964), A/6230 (1966), A/6799 (1967), A/7326 (1968) and A/7619 (1969).
Note also the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, adopted by the General Assembly on December 21, 1965, Res. 2131 (XX), U.N. Doc. A/RES/2131 (XX) Rev. 1. (1966), by a vote of 109 to none with one absention (United Kingdom) (60 AJIL (1966) p.662). Art. 2 reads: “No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind. Also, no State shall organize assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the régime of another State, or interfere in civil strife in another State.” Cf. also the Resolution adopted by the General Assembly of the O.A.S. on Acts of Terrorism, June 30, 1970. O.A.S. Doc. AG/RES.4(1-E/70) Int. Legal Materials Vol. IX No. 5 1970.
19. With respect to such activities see, among others, Lawrence, Preuss, “International Responsibility for Hostile Propaganda against Foreign States”, 28 AJIL (1934), p. 649Google Scholar; Garcia-Mora, op.cit. p. 131 (counterfeiting); Arts. 3 and 4 of the Soviet proposal, p. 38 below.
20. See footnote 14 and p. 49 below.
21. A/AC.66/L.2/Rev. 1. It should perhaps be pointed out here that whenever a definition of aggression includes such terms as “support of armed bands”, any use of force will be committed by the private group, and the supporting State is charged with a “vicarious” or “constructive” attack.
22. Hsu (China) in the Sixth Ctee. 1954, A/C6/SR 409: “…For that reason the latest version of the Soviet Union Draft definition was open to a number of objections. First, indirect aggression had been placed on the same level as so-called economic and ideological aggression; secondly, the support of armed bands that had invaded another State's territory had not been classed as an instance of indirect aggression; thirdly the subversive activities amounting to indirect aggression were described by the draft resolution as acts of terrorism, diversionary acts etc.; fourthly, the Soviet Union draft resolution made no mention of subversion proper, which consisted of activities aiming at the overthrow, by force or other illegal means, of the political or social order of a State.”
Cf. however the Chairman in the 1953, Special Ctee. A/AC.66/SR 14: “One such practice [economic and ideological measures] was of special importance, namely the encouragement by a State of subversive activities directed against another State. In the draft resolution submitted by the U.S.S.R., acts of that nature were rightfully mentioned under para. 2 devoted to indirect aggression; reprehensible activities under that heading were not confined to the support of armed bands, which constituted a characteristic case of armed aggression.”
23. Sixth Ctee. 1951–52 A/C6/SR 278. See also the Colombian delegate in the Sixth Ctee. 1957, A/C6/SR 516 and Working Paper No. 1, submitted by China to the 1953 Special Ctee., A/AC.66/ L.4/Rev. 3. On this point generally see Report of the 1953 Special Ctee., A/2638, Supp. No. 11.
24. A/AC.66/SR 8.
25. Sixth Ctee. 1957, A/C6/SR 517. See also Working Paper submitted by Mexico to the 1953 Special Ctee., A/AC.66/L.8.: “2. In view of the influence which the definition of aggression may have on the application and interpretation of Art. 51 of the United Nations Charter, it seems, in the opinion of the Mexican delegation, hazardous to extend the concept of aggression to include separate elements of the use of force Thus, acts constituting so-called indirect, economic or ideologcal aggression should be regarded as aggression only if they involve or are accompanied by the use of force. Consequently, for the purpose of the definition:
….(b) Even though such acts did not constitute aggression, they might justify enforcement measures by the Security Council as provided in Art. 39 of the Charter in the same manner as though aggression had been committed if by their effect on the victim State or for any other reason they constituted a threat to the peace.”
26. A/AC.77/L.7.
27. A/C6/SR 418.
28. A/AC.77/L.13 Annex 11, p. 5 (submitted at the IX.Sess and recirculated in 1956):
“2. In accordance with the foregoing definition, in addition to any other acts which such international bodies as may be called upon to determine the aggressor may declare to constitute aggression, the following acts are acts of aggression in all cases:
…(d) The organization, or the toleration of the organization, by a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursion”.
29. Sixth Ctee. 1954, A/C6/SR 417.
30. A/C6/L.344/Rev. 1 Identical to the resolution of 1956, footnote 26 above.
31. A/C6/SR 410.
32. See for example David, Brook, Preface to Peace. The United Nations and the Arab-Israel Armistice Sytem, (1964)Google Scholar; Bar-Yaacov, N., The Israel-Syrian Armistice. Problems of Implementation 1949–1966, (1967)Google Scholar; von Horn, C., Soldiering for Peace, 1966.Google Scholar
33. The Netherlands delegate (Röling) in the 1953 Special Ctee. A/AC.66/SR 15:
“Opinion might well differ as to what constituted a frontier incident under para. 6 B(j) [of the Soviet proposal]. The incidents of Lake Hassan in 1938 and Nomanhan in 1939, between Japanese troops on the one hand and U.S.S.R. and Mongolian troops on the other, were cases in point. They had been settled at the time as frontier disputes, but at the Tokyo trials in 1946 they had been cited as cases of Japanese aggression.”
34. A/C6/SR 417. Compare however the statement by the same delegate in the Special Ctee. 1953, footnote 33 above.
35. A/C6/SR 330.
36. A/C6/SR 281.
37. See the remarks of Hsu in the ILC in 1954 in connection with Art. 2(4) of the Draft Code, Yearbook of the ILC, (Yearbook) 1954 Vol. I pp. 127–128.
38. See below pp. 46–47.
39. A/AC.77/L.13 Annex 11, p. 7.
40. Iranian-Panamanian draft, footnote 25) above; Syrian proposal p. 40 above; suggestion of the Peruvian delegate, Sixth Ctee, 1957, A/C6/SR 528; “Organizing in its territory or directly contributing to the organization within its territory of armed bands which invade the territory of another State or which carry out raids by crossing the frontiers of another State.”; Cf. the Paraguayan proposal p. 40 above.
41. A/AC.66/L.9.
42. A/AC.77/L.11.
43. But see footnote 6 above, and the two proposals, by Zourek and Hsu, to include provisions dealing with subversive activities, Yearbook 1954, Vol. 1, pp. 130 and 140–142, and Lauterpacht's comment in the same session that “the international community was no longer a society for the mutual protection of established governments. A revolution might be a crime against the State, but it was no longer a crime against the international community.” See also Quincy, Wright, “Subversive Intervention” 54 AJIL (1960) p. 521.Google Scholar
44. Yearbook 1954 Vol. 2 p. 151.
45. Cf. the Convention for the Prevention and Punishment of Terrorism; Van Schelven op.cit. pp. 59–61. Some members also considered the motive for the act to be relevant to the distinction between a municipal and international crime. See below p 51.
46. Yearbook 1954 Vol. 2 p. 151
47. See for example the claim by the Soviet Government to pursue (with notification) bands into Roumanian territory. Brownlie, , op.cit. 7 ICLQ (1958) p. 734.Google Scholar
48. Brownlie, ibid. pp. 733–734; Garcia-Mora, op.cit. p. 122 ff.; Bowett, , Self-Defence in International Law, 1958, pp. 38–41.Google Scholar
49. Poulantzas, N.M., The Right of Hot Pursuit in International Law, (1969) pp. 2 and 23Google Scholar. The author examines two incidents in the Middle East on pp. 22–26, and while exception might be taken to his interpretation of the facts, his conclusions correspond to those of the other authors.
50. A/C6/SR 292.
51. Sixth. Ctee. 1951–52, A/C6/SR 287.
52. See respectively p. 40, p. 44 and footnote 28.
53. See s. 14(2) of the Convention for Prevention and Punishment of Terrorism.
54. This argument does not, of course, preclude the application of other humanitarian norms, customary or conventional. Nor should it be used to absolve such irregular forces from the obligation to adhere to the rules governing conduct in war. In the (Italian) Ardeatine Cave Case (Trial of Kappler), Tribunale Militare territoriale of Rome, July 20, 1948, A.D. 1948 p. 471, where the defendant was charged with the murder of a large number of members of the Italian resistance in “reprisal” for a bomb attack on German policemen. The decision rested in part on the finding that though the Italian resistance group carrying out the original attack had not achieved legitimate combatant status, it had figured de facto as an organ of the Italian State and had received implicit recognition.
55. Yearbook 1950 Vol. 2, p. 263.
56. Yearbook 1951 Vol. 2, p. 57.
57. See note 14.
58. See supra p. 38.
59. A/C6/SR 528. See footnote 40 above.
60. Special Ctee. 1956, A/AC.77/L.7 and p. 40 above.
61. Two proposals, both rejected, (Yearbook 1954 VoL. 1. pp. 127–8) suggested firstly, covering the case where the armed bands, though organized without the support of the authorities, received help after their incursion into another State had begun, and secondly, incorporating the (totally inapposite) element of “refusal … on being requested by the invaded State …”.
62. Yearbook 1954 Vol. 2 p. 150.
63. Yearbook 1950 Vol. 1 p. 129: “He (i.e. the Chairman) felt he must again consult the Commission on the question whether it wished to exclude from the Code, and consequently from the category of international crimes, terroristic acts of a purely personal nature, organized or committed without the intervention of the constitutionally responsible rulers. The Commission decided, by 6 votes in favour, to exclude such acts. The Chairman asked the Commission if it wished to include in the code acts of terrorism by individuals acting on their own account and having no connexion with the constitutionally responsible rulers. The Commission decided, by 4 votes in favour, to include such crimes. The Chairman regretted to state that, as a result of the decisions just taken, the draft code no longer corresponded to his idea of an international code.”
64. See Quincy, Wright, op.cit. 50 AJIL (1956) at p. 527, footnote 36.Google Scholar
65. Consider, for example, attentat clauses in 19th Century extradition agreements, and municipal cases, such as: Re Castioni 1891 1 QB. 149 and Re Meunier 1894 QB. 415.
66. But see the Soviet delegate, Sixth Ctee. 1957, A/C6/SR 514: “In order to define aggression within the meaning of Art. 51, it was necessary to determine the criteria which should govern the matter. In the first place, there must be the use of weapons or armed forces; in the second place the initiative must be taken by the State resorting to weapons or armed forces, in other words that State must be the first to act; and in the third place, the armed attack need not have any particular scope or specific objective.”
67. Yearbook 1950 Vol. 1 pp. 117–122.
68. Ibid. p. 122.
69. Ibid. p. 126 ff.
70. Blum, op.cit. pp. 76–79; Stone, , 64 AJIL (1970) p. 161CrossRefGoogle Scholar; Falk, , 64 AJIL (1970) pp. 162–3.CrossRefGoogle Scholar
71. Art. III of the Armistice Agreement 1948 between Israel and Syria reads: ”…
2. 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 para-military forces of the other party, or against civilians in the territory under control of that Party; or shall advance beyond or pass over for any purpose whatsoever the Armistice Demarcation lines…
3. 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, or against civilians in territory under the control of that Party.” Similarly the Agreements between Israel and Jordan and Lebanon, but without the final phrase (or against civilians …) and the Israel-Egyptian Agreement, but without Clause. 3. See Rosalyn, Higgins, United Nations Peacekeeping, Documents and Commentary, 1946–1967 Vol. 1. The Middle East, (1969) pp. 32, 38, 43 and 49.Google Scholar
Cf. also the Progress Report of the UN Mediator to the General Assembly, A/648 p. 34 (1948) which contained the following passage: “These irregulars in many cases considered themselves not bound by the provisions of the ceasefire and truce agreement and were responsible for breaches of the truce on both sides. The only course of dealing with the problem was for me to insist that the Arab and Israeli forces and their respective Governments accept full responsibility for all activities occurring in the areas occupied by them.” This was confirmed by the Security Council in Resolution S/983, August 19, 1948: “The Security Councif… decides (a) Each party is responsible for the actions of both regular and irregular forces operative 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 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; (d) No party is permitted to violate the truce on the grounds that it is undertaking reprisals or retaliations against the other party; (e) No party is entitled to gain military or political advantage through violations of the truce. See Rosalyn Higgins, op.cit. pp. 75, 151 and 193.
72. Such attacks, which are sometimes even launched against the property of non nationals of the ‘victim’ State are usually designed to harm that State's economic interests, by discouraging tourism, investment, etc.
73. The International Committee of the Red Cross is, however, at present examining questions concerning the application of the laws of war in international conflicts and guerilla warfare.
74. Quincy, Wright, “Espionage and the Doctrine of Non-intervention in Internal Affairs” in Essays on Espionage and International Law, (1962) p. 15.Google Scholar