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Bekijk Volledige Versie : Een juridische analyse van ''de VN M-O staakt-het-vuur-resolutie''



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15-08-06, 07:14
http://jurist.law.pitt.edu/forumy/2006/08/un-mideast-ceasefire-resolution.php


The UN Mideast Ceasefire Resolution Paragraph-by-Paragraph


JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law offers his analysis of UN Security Council Resolution 1701, calling for an immediate cessation of hostilities in the Middle East conflict involving Israel, Hezbollah and Lebanon...

Hezbollah's surprising television announcement accepting the terms of the UN Ceasefire Resolution means that the precise wording of the Resolution will be under strict diplomatic scrutiny for weeks or months to come. The following is my paragraph-by-paragraph commentary (in regular text) on the complete text (in italics) of UN Security Council Resolution 1701 (11 August 2006).

The Security Council,

PP1. Recalling all its previous resolutions on Lebanon, in particular resolutions 425 (1978), 426 (1978), 520 (1982), 1559 (2004), 1655 (2006) 1680 (2006) and 1697 (2006), as well as the statements of its President on the situation in Lebanon, in particular the statements of 18 June 2000 (S/PRST/2000/21), of 19 October 2004 (S/PRST/2004/36), of 4 May 2005 (S/PRST/2005/17) of 23 January 2006 (S/PRST/2006/3) and of 30 July 2006 (S/PRST/2006/35),

These previous resolutions are all superseded by the present resolution.

PP2. Expressing its utmost concern at the continuing escalation of hostilities in Lebanon and in Israel since Hezbollah's attack on Israel on 12 July 2006, which has already caused hundreds of deaths and injuries on both sides, extensive damage to civilian infrastructure and hundreds of thousands of internally displaced persons,

Hezbollah's attack on 12 July 2006 was a border incident that under international law does not amount to an armed attack against a nation. Violent border incidents occur between India and Pakistan almost on a daily basis. If either side regarded these as armed attacks, the two sides right now would be engaged in total war, perhaps even using nuclear weapons. Constant border incidents also occur between a number of nations in Africa. None of these are regarded in international law as a casus belli. Israel's immediate and massive retaliation, however, was arguably an act of aggression. Nevertheless, this paragraph PP2 casts the blame on Hezbollah. Since it is not an operative paragraph (OP), but merely a preparatory paragraph (PP), its inclusion was a probably a sop to Israeli sensibilities.


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PP3. Emphasizing the need for an end of violence, but at the same time emphasizing the need to address urgently the causes that have given rise to the current crisis, including by the unconditional release of the abducted Israeli soldiers,

This paragraph does not call for the immediate release of the abducted Israeli soldiers. Its main purpose seems to be the decoupling of Israeli prisoners from Lebanese prisoners, so that the final settlement does not appear to be a trade. Israel has made it clear that a "trade" would be humiliating under the circumstances.

PP4. Mindful of the sensitivity of the issue of prisoners and encouraging the efforts aimed at urgently settling the issue of the Lebanese prisoners detained in Israel,

For the same reason as above, this paragraph finishes the job of decoupling.

PP5. Welcoming the efforts of the Lebanese Prime Minister and the commitment of the government of Lebanon, in its seven-point plan, to extend its authority over its territory, through its own legitimate armed forces, such that there will be no weapons without the consent of the government of Lebanon and no authority other than that of the government of Lebanon, welcoming also its commitment to a UN force that is supplemented and enhanced in numbers, equipment, mandate and scope of operation, and bearing in mind its request in this plan for an immediate withdrawal of the Israeli forces from Southern Lebanon,

This is now a sop to the sensibilities of the Lebanese government.

PP6. Determined to act for this withdrawal to happen at the earliest,

The Security Council could have decreed that the withdrawal begin immediately. However, to do so would have meant that the Security Council was acting within its mandatory powers of Chapter 7 of the UN Charter. This paragraph PP6 indicates that the Council is acting under Chapter 6, which is limited to making recommendations to the parties. As we shall see, this entire Resolution creates profound ambiguities as to whether it is authorized by either Chapter 6 or Chapter 7. Different paragraphs seem to shift from one to the other.

PP7. Taking due note of the proposals made in the seven-point plan regarding the Chebaa farms area,

The Chebaa Farms is a small strip of territory on the border between Israel and Lebanon. Israel has occupied it since defeating Syria in the 1967 war, but it belongs either to Syria or to Lebanon. Under international law, territory can no longer be obtained by military conquest, and hence it does not legally belong to Israel. Heated diplomatic disputes between Lebanon and Israel in the past week over this territory almost killed the UN draft resolution. The accommodation in PP7 allows UN Secretary-General Kofi Annan to determine the status of the Chebaa Farms. This was not acceptable to Israel. In a side deal between the United States and Israel, brokered by Secretary of State Condoleezza Rice, the United States pledged to use its veto power in the Security Council to block any decision by Annan to hand the territory directly over to Lebanon. This side deal appears to have sandbagged the Lebanese government. Yet it does not contradict the language of PP7 and therefore appears to be lawful. Perhaps Lebanon should have had better lawyers representing it at the United Nations. Or maybe Lebanon liked the rest of the Resolution so much as to induce it to let the Chebaa Farms go for the time being.

PP8. Welcoming the unanimous decision by the government of Lebanon on 7 August 2006 to deploy a Lebanese armed force of 15,000 troops in South Lebanon as the Israeli army withdraws behind the Blue Line and to request the assistance of additional forces from UNIFIL as needed, to facilitate the entry of the Lebanese armed forces into the region and to restate its intention to strengthen the Lebanese armed forces with material as needed to enable it to perform its duties,

This language tilts the resolution toward Chapter 6 (recommendations). The Security Council could have ordered Lebanon to deploy such an armed force if the Council wished to invoke Chapter 7 (decisions). But inasmuch as the government of Lebanon agreed in advance to deploy such an armed force, it was prudent here for the Council to use the honey of Chapter 6 instead of the vinegar of Chapter 7.

PP9. Aware of its responsibilities to help secure a permanent ceasefire and a long-term solution to the conflict,

This is probably meant for the average American high-school student who says, "What's the United Nations and why should I care?"

PP10. Determining that the situation in Lebanon constitutes a threat to international peace and security,

Suddenly, almost as an afterthought, come these remarkable words. Up to now it has appeared that the Security Council was acting under the recommendatory powers of Chapter 6. But PP10 directly invokes Chapter 7 by the use of the key words "determine," "constitutes," "threat," and "international peace and security," all found in Article 39 of the Charter. Why would Israel consent to PP10 when all along it had been insisting on its right to accept or reject the pending UN resolution? (Note that Israel could reject a "recommendation" under Chapter 6, but would have no choice in the matter if the Security Council were to act under Chapter 7). The reason is probably that Israel for the past month has complained that the 2,000 UNIFIL force in southern Lebanon (United Nations Interim Force In Lebanon) has from its inception in 1978 been nothing but a see-no-evil vacation spot for lazy peacekeepers. Israel's insistence that a UN force have full military powers to use force if necessary to back up UN recommendations may have been interpreted as a concession on Israel's part that the UN peacekeeping force can be nothing other than a UN Army with full enforcement powers under Chapter 7.

OP1. Calls for a full cessation of hostilities based upon, in particular, the immediate cessation by Hezbollah of all attacks and the immediate cessation by Israel of all offensive military operations;

Sheikh Hassan Nasrallah of Hezbollah has called this provision unfair: it only bars "offensive" military operations by Israel while prohibiting "all" Hezbollah attacks. Yet this is what lawyers would call a distinction without a difference. So long as Hezbollah ceases all attacks, Israel would not have any justification for offensive or defensive operations.

OP2. Upon full cessation of hostilities, calls upon the government of Lebanon and UNIFIL as authorized by paragraph 11 to deploy their forces together throughout the South and calls upon the government of Israel, as that deployment begins, to withdraw all of its forces from Southern Lebanon in parallel;

Just as the ink was drying on the UN Resolution, Israel hurriedly moved 20,000 of its ground forces across the border into Lebanon. This action shocked many of the members of the Security Council in New York. They should have seen it coming. Israel's decision seems to have been triggered by the "in parallel" language of OP2. With a total now of 30,000 soldiers in Lebanon, Israel is in a position of withdrawing them one-for-one only with each replacement soldier from the UN or from Lebanon. The UN peacekeeping force is capped at 15,000 (see below, OP 11), and Lebanon has amassed 15,000 troops for deployment in its southern area.

OP3. Emphasizes the importance of the extension of the control of the government of Lebanon over all Lebanese territory in accordance with the provisions of resolution 1559 (2004) and resolution 1680 (2006), and of the relevant provisions of the Taif Accords, for it to exercise its full sovereignty, so that there will be no weapons without the consent of the government of Lebanon and no authority other than that of the government of Lebanon;

This is one of the many paragraphs of the Resolution that is premised upon the assumption that the Lebanese government wants to disarm and render inoperative the Hezbollah fighters. But what if the Lebanese government and Hezbollah in the past few days have reached a secret accommodation between themselves so that they are no longer in opposition to each other? Then many of the provisions of this Resolution could fall apart. I will take up this possibility in greater detail as we proceed through the operative paragraphs of this Resolution.

OP4. Reiterates its strong support for full respect for the Blue Line;

With Israel having so many boundary disputes, it comes as a relief to all sides that at least the Blue Line between Lebanon and Israel is being made permanent.

OP5. Also reiterates its strong support, as recalled in all its previous relevant resolutions, for the territorial integrity, sovereignty and political independence of Lebanon within its internationally recognized borders, as contemplated by the Israeli-Lebanese General Armistice Agreement of 23 March 1949;

This provision could backfire if Hezbollah becomes integrally associated with the government of Lebanon. The parallel with Palestine is striking: Hamas became the democratically elected government of the Palestinians to the utter dismay of Israel. Now the four-week war between Lebanon and Israel has moved the majority of the Lebanese public to support Hezbollah, as if there has been a virtual election of Hezbollah to the government.

OP6. Calls on the international community to take immediate steps to extend its financial and humanitarian assistance to the Lebanese people, including through facilitating the safe return of displaced persons and, under the authority of the Government of Lebanon, reopening airports and harbours, consistent with paragraphs 14 and 15, and calls on it also to consider further assistance in the future to contribute to the reconstruction and development of Lebanon;

A sound humanitarian provision to which no one could object.

OP7. Affirms that all parties are responsible for ensuring that no action is taken contrary to paragraph 1 that might adversely affect the search for a long-term solution, humanitarian access to civilian populations, including safe passage for humanitarian convoys, or the voluntary and safe return of displaced persons, and calls on all parties to comply with this responsibility and to cooperate with the Security Council;

This is more than precatory language. It enables the Security Council to enforce its provisions under the Chapter 7 authorization of this Resolution that was inserted above in PP 10.