The suspension of hostilities

(a) Different types of suspension of hostilities

A suspension of hostilities may evolve defacto when no military operations take place. A respite of this nature may endure for a long period of time. But since neither belligerent is legally committed to refrain from resuming hostilities, the fighting can break out again at any moment without warning. 125

More importantly, belligerents may assume an obligation de jure to abstain from combat in the course of a war (which goes on). A number of terms are used to depict a legal undertaking to suspend hostilities: (i) truce, (ii) cease-fire, and in the past also (iii) armistice. As noted (supra, B (b)), the last term - armistice - has undergone a drastic change in recent years and now principally conveys a termination, rather than a suspension, of hostilities. The current usage of the term 'cease-fire', in lieu of 'armistice', must be recalled when one examines the afore-mentioned Articles 36 to 41 of the Hague Regulations. 126 These clauses do not employ the phrase 'cease-fire'. Instead, they refer to 'armistice', commen-surately with the vocabulary prevalent at the turn of the century. How-

122 J. L. Kunz, 'Ending the War with Germany', 46 A.J.I.L. 114, 115 (1952).

123 See D. Ottensooser, 'Termination of War by Unilateral Declaration', 29 B.Y.B.I.L. 435,442 (1952).

124 See F. C. Balling, 'Unconditional Surrender and a Unilateral Declaration of Peace', 39 A.P.S.R. 474,476 (1945).

125 See M. Sibert, 'L'Armistice', 40 R.G.D.I.P. 657, 660 (1933).

126 Hague Regulations, supra note 68, at 121-2.

ever, since their avowed aim is to govern the suspension of hostilities, they must be deemed applicable to present-day cease-fires (as opposed to modern armistices).

The expression 'truce' is embedded in tradition and history. It acquired particular resonance in the Middle Ages, in the form of the Truce of God (Treuga Dei). This was an ecclesiastical measure by which the Catholic Church suspended warfare in Christendom on certain days of the week, as well as during Lent and church festivals.127 The phrase 'cease-fire' has been introduced into international legal parlance in the present (post-World War II) era. Although some scholars ascribe to truce and cease-fire divergent implications, the present practice of States - for the most part -treats them as synonymous. 12- As examples for an indiscriminate use of the two terms, it is possible to adduce successive resolutions adopted by the Security Council during Israel's War of Independence in 1948.12—

A cease-fire (or truce) may be partial or total in scope. Article 37 of the Hague Regulations differentiates between a general cease-fire (originally, 'armistice') suspending all military operations everywhere, and a local cease-fire suspending such operations only between certain units at particular locations. 130

i. Local cease-fire agreement A cease-fire (or truce) may apply to a limited sector of the front, without impinging on the continuation of combat elsewhere. The object of such a local suspension of hostilities is to enable the belligerents to evacuate the wounded, bury the dead, conduct negotiations and so forth. A local cease-fire may be agreed upon on the spot by military commanders (who can be relatively junior in rank), without the involvement of their respective Governments. The agreement would then be informal, and it does not have to be in writing.m

Article 15 of Geneva Convention (I) of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field stipulates that, whenever circumstances permit, a suspension of hostilities is to be arranged (generally or locally) so as to facilitate the removal, exchange and transport of the wounded left on the battlefield or within a besieged or encircled area. 132 The article employs the term 'armistice', but what is actually meant in current terminology is a cease-fire.

127 See 'God, Truce of', 5 The New Encyclopaedia Britannica 319, id. (15th ed., 1998).

128 See P. Mohn, 'Problems of Truce Supervision', 478 Int.Con. 51, 53-7 (1952).

12— Security Council Resolutions 49, 50, 53, 54, 56, 59, 61 and 62 (all of 1948), 3 R.D.S.C. 19-30 (1948). 13o Hague Regulations, supra note 68, at 121.

131 See Oppenheim, supra note 46, at 550.

132 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, 40-2.

ii. General cease-fire agreement Belligerents may enter into an agreement suspending hostilities everywhere within the region of war (see supra, ch. 1, C). The duration of a general cease-fire (or truce) may be predetermined in the agreement or it may be left open.

A general cease-fire agreement is normally made in writing by (or with the approval of) the Governments concerned. In that case, it has the status of a treaty under international law.133 The essence of a general cease-fire is a detailed agreement on the conditions under which hostilities are suspended. There are two sine qua non specific elements: time (at which the cease-fire is due to enter into force on all fronts: there can also be different times for different geographic sectors) and place (fixing the demarcation line between the opposing military formations, with or without a buffer demilitarized zone).04 However, nothing prevents the parties from appending to a general cease-fire agreement other clauses, which transcend the technicalities of the suspension of hostilities and relate to such matters as the immediate release of prisoners of war. Semantically, this is liable to produce a result that may sound strange. Should a general cease-fire agreement set a date for release of prisoners of war, and should a belligerent extend their detention beyond that date, the act would constitute a cease-fire violation although no fire has been opened.

iii. Cease-fire ordered by the Security Council The Security Council, performing its functions under Chapter VII of the Charter of the United Nations,05 may order belligerents to cease fire. Unequivocal language to that effect is contained, for example, in Resolution 54 (1948)13® adopted at the time of Israel's War of Independence. Under Article 25 of the Charter, UN members are legally bound to accept and carry out mandatory decisions of the Security Council (see infra, ch. 10, B (a)).i37 However, the Council does not rush to issue direct orders. Ordinarily, it shows a proclivity for milder language. In the Falkland Islands War of 1982, the Council only requested the Secretary-General 'to enter into contact with the parties with a view to negotiating mutually acceptable terms for cease-fire'.08 On other occasions, the Council called upon

133 See R. R. Baxter, 'Armistices and Other Forms of Suspension of Hostilities', 149 R.C.A.D.I. 353, 371-2 (1976). The author did not differentiate between the terms 'cease-fire' and 'armistice'.

134 See S. Bastid, 'The Cease-Fire', 6(1) R.S.I.D.M.D.G. 31, 37 (1973).

135 Charter of the United Nations, supra note 87, at 343-6. 13® Security Council Resolution 54, supra note 129, at 22.

137 Charter of the United Nations, supra note 87, at 339. See also Article 48(1) of the Charter, ibid.., 345-6.

138 Security Council Resolution 505, 37 R.S.D.C. 17, ¿d. (1982).

the parties to cease fire,139 and less frequently demanded a cease-fire.140 As long as the Council is merely calling for a cease-fire, its resolution has the hallmark of a non-binding recommendation. The parties are then given an opportunity to craft a cease-fire agreement of their choosing. But if they fail to reach an agreement, the Council may be driven in time to ordain a cease-fire. In the Iran-Iraq War, the Security Council issued a call for a cease-fire in 1982,141 demanding it only in 1987.The text and the circumstances clearly imply that 'the change in the wording from calling for a cease-fire to demanding one' conveyed a shift from a recommendation to a binding decision. 143

The most peremptory and far-reaching cease-fire terms ever resorted to by the Security Council were imposed on Iraq in Resolution 687 (1991),144 after the defeat of that country by an American-led coalition -with the direct blessing of the Council - in the Gulf War (see infra, ch. 9, E). Resolution 687 'is unparalleled in the extent to which the Security Council' was prepared to go in dictating cease-fire conditions (especially where disarmament is concerned). 145 Nevertheless, as the text of the resolution explicitly elucidates, it brings into effect no more than 'a formal cease-fire'. 14® A labelling of Resolution 687 as a 'permanent cease-fire'147 is a contradiction in terms: a cease-fire, by definition, is a transition-period arrangement. The suggestion that 'despite the terminology used in Resolution 687, it is clearly more than a mere suspension of hostilities' -for the substance 'is that of a peace treaty'148 - is not only completely inconsistent with the plain text of the resolution: it is also counterfactual, given subsequent history. At various points since 1991, especially in December 1998 and throughout 1999, warplanes from the US and the UK (as leading members of the original coalition) have struck Iraqi military installations. The air campaign must be seen as a resumption of combat operations in the face of Iraqi violations of the cease-fire terms.14—

139 See e.g. Security Council Resolution 233, 22 R.S.D.C. 2, id. (1967).

140 See e.g. Security Council Resolutions 234 and 235, 22 R.S.D.C. 3, id. (1967).

141 Security Council Resolution 514, 37 R.S.D.C. 19, id. (1982).

142 Security Council Resolution 598, 42 R.S.D.C. 5, 6 (1987).

143 M. Weller, 'Comments: The Use of Force and Collective Security', The Gulf War of 1980-198871, 85 (I. F. Dekkerand H. H. G. Posteds., 1992).

144 Security Council Resolution 687, 46 R.S.D.C. 11-15(1991).

145 D. M. Morriss, 'From War to Peace: A Study of Cease-Fire Agreements and the Evolving Role of the United Nations', 36 V.J.I.L. 801,891-2 (1995-6).

14® Security Council Resolution 687, supra note 144, at 12.

147 J. Lobel and M. Ratner, 'Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime', 93 A.J.I.L. 124, 148 (1999). 14s C. Gray, 'After the Cease-Fire: Iraq, the Security Council and the Use of Force', 65

149 See R. Wedgwood, 'The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destruction', 92 A.J.I.L. 724, 726 (1998).

The hostilities merely continue a decade-long war, which started when Iraq invaded Kuwait in August 1990.

The General Assembly, too, may call upon belligerents to effect an immediate cease-fire. This is what the General Assembly did in December 1971,150 after the outbreak of war between India and Pakistan (ultimately culminating in the creation of the independent State of Bangladesh). When such a resolution is passed by the General Assembly, it can only be issued as a recommendation and can never be binding (see infra, ch. 10, E (a)). As a non-mandatory exhortation, the resolution may be ignored with impunity, just as India disregarded the resolution in question.151

In recent years, most cease-fires have come in the wake of Security Council resolutions: either the parties carry out a mandatory decision of the Council or they arrive at an agreement at the behest of the Council. Even during the 'Cold War', as long as the Council was not in disarray owing to the exercise or the threat of a veto (see infra, ch. 10, C), a cease-fire resolution became almost a conditioned reflex in response to the onset of hostilities. Generally speaking, the Council has tended to act as a fire-brigade, viewing its paramount task as an attempt to extinguish the blaze rather than dealing with all the surrounding circumstances.

A cease-fire directive by the Council, like an agreement between the belligerents, may be limited to a predetermined time-frame. A case in point is Resolution 50 (1948), adopted in the course of Israel's War of Independence, which called upon all the parties to cease fire for a period of four weeks. 152 When the prescribed time expired, fighting recommenced. More often, the Council avoids setting specific terminal dates for cease-fires, preferring to couch them in an open-ended manner.

(b) The nature of cease-fire

The suspension of hostilities must not be confused with their termina-tion.153 A termination of hostilities means that the war is over: the parties are no longer belligerents, and any subsequent hostilities between them would indicate the outbreak of a new war. Conversely, a suspension of hostilities connotes that the state of war goes on, but temporarily there is no actual warfare. Psychologically, a protracted general cease-fire lasting indefinitely is a state of no-war and no-peace. Legally, this is a clear-cut

150 General Assembly Resolution 2793 (XXVI), 26 R.G.A. 3, id. (1971).

151 See P. Bretton, 'De Quelques Problemes du Droit de la Guerre dans le Conflit IndoPakistanais', 18 A.F.D.I. 201,211 (1972).

152 Security Council Resolution 50, supra note 129, at 20.

153 For an illustration of such confusion, see V. A. Ary, 'Concluding Hostilities: Humanitarian Provisions in Cease-Fire Agreements', 148 Mil.L.R. 186, 187-92 (1995).

case of war. The state of war is not terminated, despite the absence of combat in the interval.

Renewal of hostilities before a cease-fire expires would obviously contravene its provisions. None the less, it must be grasped that hostilities are only continued after an interruption, and no new war is started. For that reason, a cease-fire violation is irrelevant to the determination of armed attack and self-defence (to be discussed infra, ch. 7, B). That determination is made exclusively on the basis of the beginning of a new armed conflict. The reopening of fire in an on-going war is not germane to the issue. 154

A cease-fire provides 'a breathing space for the negotiation of more lasting agreements'. 155 It gives the belligerents a chance to negotiate peace terms without being subjected to excessive pressure, and to turn the suspension into a termination of hostilities. But no indispensable bond ties cease-fire and peace. On the one hand, a treaty of peace may not be preceded by any cease-fire. 156 On the other hand, a cease-fire may break down, to be followed by further bloodshed.

The pause in the fighting, brought about by a cease-fire, is no more than a convenient juncture for direct negotiations or for efforts to be exerted by third parties to broker a peace arrangement. Even a binding cease-fire decree issued by the Security Council may not be able 'to withstand the strains between the parties' in the long run.157 Should the parties fail to exploit the opportunity, the period of quiescence is likely to become a springboard for additional rounds of hostilities (perhaps more intense). This is only to be anticipated. A cease-fire, in freezing the military state of affairs extant at the moment when combat is suspended, places in an advantageous position that party which gained most ground before the deadline. While the guns are silent, the opposing sides will rearm and regroup. If no peace is attained, the belligerent most interested in a return to the status quo ante will look for a favourable moment (militarily as well as politically) to mount an offensive, in order to dislodge the enemy from the positions acquired on the eve of the cease-fire. A cease-fire in and of itself is, consequently, no harbinger of peace. All that a

154 Vindication of the air campaign against Iraq is sometimes sought by invoking the right of self-defence. See e.g., S. M. Condron, 'Justification for Unilateral Action in Response to the Iraqi Threat: A Critical Analysis of Operation Desert Fox', 161 Mil.L.R. 115-80 (1999). But the legitimacy of self-defence (in response to an armed attack) in the Gulf War was fixed already in August 1990.

155 S. D. Bailey, 'Cease-Fires, Truces, and Armistices in the Practice of the UN Security Council', 71 A.J.I.L. 461, 469 (1977).

156 See C. Rousseau, Le Droit des ConflitsArmes 202 (1983).

157 Morriss, supra note 145, at 815.

cease-fire can accomplish is set the stage for negotiations or any other mode of amicable settlement of disputes. If the parties contrive to hammer out peace terms, success will be due more to the exercise of diplomatic and political skills than to the cease-fire as such.

The Arab-Israeli conflict is a classical illustration of a whole host of cease-fires, either by consensual arrangement between the parties or by fiat of the Security Council, halting hostilities without bringing them to an end. Thus, if we take as an example the mislabelled 'Six Days War' (sparked in June 1967 and proceeding through several cycles of hostilities), the Council insisted on immediate cease-fire e.g. in June 1967158 and in October 1973.159 Israel and Egypt negotiated a cease-fire agreement e.g. in November 1973.160 Israel and Syria agreed on a cease-fire e.g. in May 1974.161 In none of these cases did the cease-fire, whether initiated by the parties or by the Council, terminate the war. In the relations between Israel, on the one hand, Egypt and Jordan, on the other, the 'Six Days War' ended only upon (or on the eve of) the conclusion of Treaties of Peace in 1979 and 1994 respectively (see supra, B (a), (i)). In the relations between Israel and Syria, the 'Six Days War' is not over yet, after more than three decades, since the bilateral peace process (albeit started) has not yet been crowned with success. A number of rounds of hostilities between Israel and Egypt or Syria (most conspicuously, the so-called 'Yom Kippur War' of October 1973) are incorrectly adverted to as 'wars'. Far from qualifying as separate wars, these were merely non-consecutive time-frames of combat, punctuated by extended cease-fires, in the course of a single on-going war that had commenced in June 1967.

(c) Denunciation and breach of cease-fire

Cease-fires are intrinsically brittle. Under Article 36 of the Hague Regulations, if the duration of a suspension of hostilities is not defined, each belligerent may resume military operations at any time, provided that an appropriate warning is given in accordance with the terms of the ceasefire (originally, 'armistice'). 162 The language of Article 36 seems to this writer to be imprecise. It is submitted that a general cease-fire, if concluded without specifying a finite date of expiry, ought to be read in good faith as if it were undertaken for a reasonable period. Within that (admit

158 Security Council Resolutions 233, 234 and 235, supra notes 139-40, at 2-3.

159 Security Council Resolution 338, 28 R.S.D.C. 10 (1973).

160 Egypt-Israel, Cease-Fire Agreement, 1973, 12 I.L.M. 1312 (1973).

161 Syria-Israel, Agreement on Disengagement between Forces, 1974, 13 I.L.M. 880

(1974). 162 Hague Regulations, supra note 68, at 121.

tedly flexible) stretch of time, none of the parties can be allowed to denounce the cease-fire unilaterally. Hence, it is not legitimate for a belligerent (relying on Article 36) to flout the cease-fire shortly after its conclusion. Only when a reasonable period has elapsed does the continued operation ofthe agreement depend on the goodwill ofboth parties, and the cease-fire can be unilaterally denounced at will.

Article 36 contains an obligation to give advance notice to the adversary when denunciation of a cease-fire agreement occurs. But the specifics depend on what the cease-fire agreement prescribes. It appears that when the agreement is silent on this issue, hostilities may be 'recommenced at once after notification'.163 If fire can be opened at once, the practical value of notification becomes inconsequential. 164

Cease-fire (originally, 'armistice') violations are the theme of Articles 40 and 41 of the Hague Regulations. Article 41 pronounces that, should the violations be committed by private individuals acting on their own initiative, the injured party would be entitled to demand their punishment or compensation for any losses sustained. 165 Under Article 40, a serious violation of the cease-fire by one of the parties empowers the other side to denounce it and, when it is a matter of urgency, to resume hostilities immediately. 166

Articles 40 and 41 posit in effect a three-pronged classification of cease-fire violations: (i) ordinary violations, not justifying denunciation of the cease-fire (assuming that denunciation is not in any case permissible under Article 36); (ii) serious violations, permitting the victim to denounce the cease-fire, but requiring advance notice before the recommencement of hostilities; and (iii) serious violations pregnant with urgency, enabling the victim to denounce the cease-fire and reopen hostilities immediately (without advance notice). 167

The three categories of cease-fire violations are not easily applicable in reality. The question of whether a breach of the cease-fire is serious, or whether any urgency is involved, seldom lends itself to objective verification. It must not be overlooked that a violation considered a minor infraction by one party may assume grave proportions in the eyes of the antagonist. 16- At the same time, the emphasis placed by Article 40 on serious cease-fire violations is consistent with the reference to a 'material

163 Oppenheim, supra note 46, at 556.

164 The lex specialis of Article 36 of the Hague Regulations apparently overrides the lex generalis of Article 56(2) of the Vienna Convention on the Law of Treaties (supra note 51, at 154), which requires a twelve months' minimum notice of the intention to denounce a treaty. 165 Hague Regulations, supra note 68, at 122. 166 Ibid.

167 See Oppenheim, supra note 46, at 556.

168 See R. Monaco, 'Les Conventions entre Belligérants', 75 R.C.A.D.I. 277, 337-8 (1949).

breach' appearing in Article 60(1) of the 1969 Vienna Convention on the Law of Treaties (in the general context of termination of bilateral treaties).169

is— Vienna Convention, supra note 51, at 155. Cf. Baxter, supra note 133, at 386.

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Part II

The illegality of war

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