07 Aug Does it Matter if a Ceasefire Violates International Legal Principles?
Law Professor Eugene Kontorovich has this thought-provoking op-ed in today’s New York Sun arguing that the current proposal for a ceasefire between Israel and Lebanon violates a bedrock principle of international law: That nations cannot gain territory through the aggressive use of force.
Here’s an excerpt:
The most surprising aspect of international proposals for a ceasefire in the Israel-Lebanon conflict is their endorsement of Hezbollah’s demand that Israel give it territory, known as the Sheba Farms, in exchange for a end to rocket attacks on Israeli cities. The merits of the proposal as a diplomatic measure are far from clear. What is certain — and yet entirely neglected in the discussion of the issue — is that the proposal violates bedrock norms of international law.
Nations cannot enlarge their borders through the use of aggressive force. There are no exceptions to this non-acquisition principle.
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No one in the international community believes Lebanon has a legitimate claim to the Sheba Farms, known to Israelis as Har Dov. It has never been within Lebanon’s internationally recognized borders. It was under Syrian control until 1967, when Israel took it in the Six Day War. Israel entered southern Lebanon in 1982; when it withdrew in 2000, the Security Council certified that Israel no longer occupied a single inch of Lebanon. However, the Lebanese government and Hezbollah were not satisfied, raising what Secretary General Kofi Annan described as an entirely “new claim”: that Sheba Farms was also Lebanese territory. After looking into the matter, Annan and the Security Council unanimously concluded that the area was not Lebanese and never had been.
Enlarging Lebanon’s boundaries to encompass the Sheba Farms is one of Hezbollah’s stated reasons for its abduction of Israeli soldiers and bombardment of Israeli cities. Thus if the conflict ends with Lebanon gaining the land, it will have been as the result of aggressive force. It will have succeed in doing what Saddam Hussein failed to do in Kuwait.
Secretary of State Rice reportedly endorsed Lebanese demands for a cease-fire to include a handover of the territory. However, the French-U.S. proposal in the Security Council disguises the territorial surrender under the innocuous-sounding “delineation of the international borders of Lebanon, especially in those areas where the border is disputed or uncertain, including in the Shebaa farms area.” But the U.N. already certified Israel’s withdraw from Lebanon in 2000, and dismissed Hezbollah’s grounds for “disputing” the Sheba area. And while the “delineation” will be conducted by the U.N., the use of the the international body as a passthrough for Lebanon’s territorial aggrandizement will fool know one. It is what the law calls a “straw-man transaction.”
This is an interesting argument, though I am not sure it is an entirely legal one. Rather, it reflects the political tension inherent in achieving “just peace.” I agree, as a principle, that the international community cannot condone agression to aggrandize territory. Yet the allocation of geographic territory under permanent ceasefires or peace agreements has frequently “rewarded” — or recognized the reality of — gains on the battlefield. The international community should be concerned with the voluntariness of the agreement, the practicability of enforcement of ceasefires, and whether maintenance of the agreement conforms in all respects with principles of international law. Bad agreements that are pereceived by one or the other side as unjust may not hold up. If it is correct that the Sheba area is this highly contested (I am actually ignorant of the history of this particular dispute), it would seem short-sighted at this stage to include territorial recognition in any agreement. But the last decades have seen numerous agreements that lock in what one side or another views as injustices, including displacement and resettlement of people pushed out of their homes as a result of war. Compromise and settlement is just that: parties give up legal claims in exchange for peace. The axiom is easy to state in theory, devilishly difficult to achieve in reality.
I appreciate the thoughtful comments on my article. Prof. McGuinness’s argument is essentially a pragmatic one: “peace agreements ha[ve] frequently “rewarded” — or recognized the reality of — gains on the battlefield.” A few thoughts:
1) If this principle were evenhandedly applied, Israel would be entitled to annex the entirety Golan Heights, the West Bank, and Gaza, which it won in battle and has held on to and built up for forty years. Indeed, the Security Council Resolution marking the end of the Six Day War said Israel must withdraw from “territories” it had seized; a prior draft had said “the territories,” suggesting all of them; the U.S. changed the language so that a partial withdraw would satisfy Israel’s obligations. It is not clear that this would be a precedent, because Israel’s war was defensive, or at least in response to a far greater and more imminent threat than Hezbollah faced from Israel.
But in any case, many if not most international lawyers today, and certainly the ICJ, maintain that Israel cannot annex any of this territory. It seems odd to allow Lebanon to do what Israel cannot even after forty years of continuous presence.
If the U.N. came out and said, “Ceasefire agreements need to reflect the realities, and sometimes countries come out better through war, and so Lebanon can get Sheba, and Israel can get everything else,” it would be internally consistent. Of course this is quite far from what the U.N. is saying.
2) It is true that war can present fait accomplit hard for the international community to undo. They might sometimes have to go along with reality; this would of course have to be lamented as a defeat for international law. However, in this case, Lebanon has not overrun the Sheba Farms area; it is merely trying to extort it through violence. It is the international community that is spearheading the effort to transfer on-the-ground control. Peggy’s practical point suggests that while formal norms matter, possession in practice counts for a lot — O.K., here possession cuts entirely in Israel’s favor.
3) It is not correct the Sheba is “highly contested.” Lebanon made no claims to it before 2000, and those claims are not taken seriously by anyone; the U.N. in 2000 even stated that some of Lebanon’s proffered “evidence” was forged. The only real ownership dispute is between Israel and Syria. (The land lies at the intersection of Israel, Lebanon and Syria.)
EK–
My comments were meant to capture the historical realities of peace agreements. I am not sure it is any more a “defeat” of international law when parties agree to settle wars than it is a defeat for tort law when parties settle a malpractice suit out of court (though there are, or course, legal scholars who disagree). Of course, the territorial questions relating to Israel have a long and complicated history, that include Security Council resolutions, which themselves have a legal-political nature to them. My point is more that political acceptability/expediency often — but not always — trumps legal principles. And, where foudnational norms clash (e.g., the right of individuals not to be displaced or dispossesed versus the right of national self-determination versus the prohibition against aggressive use of force) hard political and legal calls are made.
For general reference, Christine Bell has an excellent article, “Peace Agreement: Their Nature and Legal Status”, 100 AJIL 373, which surveys how agreements (300 peace agreeements in 40 jurisdictions)over the past two decades have begun to form their own corpus of law, “ex pacificatoria.” Bell focuses centrally on the political and legal design of peace agreements, but also addresses the question of how political arrangements come to be “legalized” within the international system.
This is especially interesting in light of the post below regarding the ICC’s decision to revoke its indictments of the five LRA leaders in Uganda in the interest of impending peace talks. Of course it will be rather revealing to learn precisely how this particular peace process can avoid ‘condoning impunity’ if the LRA leaders escape criminal prosecution. It seems the moral and legal relations between transitional justice, restorative justice, reconciliation, conflict resolution, and criminal justice are rather complicated, with the ends of the latter not infrequently subordinated to other political and legal processes and goals. I’m rather curious to learn if we can tease out any coherent or consistent legal principles in this respect based on a comparison of the emergent legal corpus of ‘ex pacificatoria’ with international criminal law.
Seamus–
Please note the typo — I meant “Lex Pacificatoria.” (“Ex Pacficatoria would be an interesting legal corpus!)
PM
Thanks Peggy: Our family was taking a ‘pee break’ while viewing ‘Eight Below’ so I took a moment to comment, thus I’m not surprised I didn’t notice either typo! But it is rather funny!
Distinguished Professor Kontorovich,
I read your article and I have to tell you there are a lot of shortcomings. As you know, the Preamble of the UNSC 242 and other UN documents/international material, literally states “the inadmissibility of the acquisition of territory by war”. It’s a fundamental principle that rules the international order since the end of World War II and a peremptory norm of the customary international law, regardless of the kind of war (in self-defence or not). First of all, the International Community (except Israele and the United States, plus some ministate), the UN, the ICRC and the ICJ in the latest advisory opinion on the legality of the barrier/wall in the Occupied Territories, have reiterated several times that Israel has the status of occupiying power in the territories captured by Israel in the Six-Day War (such as the Sheba Farms). Accordingly, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War is entirely applicable to such territories, and not only some vague “humanitarian provisions” that claim Israel. Furthermore, several customary norms of the First Protocol are also applicable (artt.48-52). I agree with you that the Security Council has certified the Israel’s withdraw from Lebanon in 2000, that the Sheba Farms belong to Syria, and that the Hezbollah claim the area as part of the Lebanese territory and exploits this pretext to continue the cross-border warfare.
But, is there a state of pace or a state of war between Israel and Lebanon? Do you really believe that Israel destroyed Lebanon in self-defence? Do you think more than one thousand casualties, mostly children, is self-defence? Israel employed cluster bombs (see HRW report) and withe phosphorus munitions in populated areas of Lebanon. I briefly quote the statement of Mr. Jan Egeland, Under-Secretary for Humanitarian Affairs, before the Security Coucil on the humanitarian situation in the Middle East: “When there are clearly more dead children than actual combatants, the conduct of hostilities must be reviewed… If there are many more dead children in a conflict than armed men, there is something fundamentally wrong, not only with how the armed men behave and where they hide, but also with the way the response is being conducted” (28 July 2006).
I consider these Israeli actions “war crimes” and “terrorism”, just as the indiscriminate firing rockets into civilian areas in Israel by Hezbollah. But the actions of the warring parties are extremely different, and so the consequences and responsibilities of each other.
Do you agree with me?
Nazzareno Tomassini
Fano (PU)
ITALY
N.B. Please visit my Blog “Divide et Impera” http://divideandrule.blogspot.com