Bailey, Security Council Practice

8/3/2019 Bailey, Security Council Practice

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Citation: 71 Am. J. Int'l L. 461 1977

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CEASE-FIRES, TRUCES, AND ARMISTICES IN THEPRACTICE OF THE UN SECURITY COUNCIL

By Sydney D. BaileyThere is no question that there has been confusion about the precisemeaning of the terms cease-fire, truce, and armistice. The oldest term is

truce, which in the Middle Ages usually had a religious connotation as inthe phrase "Truce of God." I Hugo Grotius used truce to mean an agree-ment by which warlike acts are fo r a time abstained from, though thestate of war continues-"a period of rest in war, not a peace." 2 If hos-tilities were resumed after a truce, according to Grotius, there would beno need for a new declaration of war, since the state of war was "not dead,but sleeping." 3 Truces might be concluded by generals in command offorces or by officers of lower rank.4 In the absence of agreement to thecontrary, it was lawful to rebuild walls or to recruit soldiers during a truce,but actual acts of war were forbidden, whether against persons or property:that is to say, "whatever is done by force against the enemy." Also forbiddenwere the bribery of enemy garrisons and the seizure of places held by theenemy.,- If a truce was violated, the injured party was free to resumehostilities "even without declaring war." Private acts did no t constitute aviolation, however, unless there was public command or approval.6When the codification of international law began in the second half ofthe nineteenth century, a truce was the procedure by which belligerentsentered into parleys, and an armistice was an actual agreement to sus-pend military operations. According to Articles 43-45 of the BrusselsDeclaration of August 27, 1874, a parlementaire was a person who hadbeen authorized by one of the belligerents to enter into communicationwith the other side. He advanced bearing a white flag, accompanied by abugler or drummer, sometimes also by a flag bearer. The enemy com-mander was no t in all cases and under all conditions obliged to receive aparlementaire and was, in any case, entitled to take "all measures necessaryfor preventing the bearer of the flag of truce taking advantage of his staywithin the radius of the enemy's position to the prejudice of the latter." IThe parlementaire and the accompanying party were inviolable unless16(1) RECUEILS DE LA Socx*- INTERNATIONALE DE DRolr PENAL MILrAIRE E DE

DROrr DE LA GUERRE (PROCS. OF TIE SIXTH INTERNATIONAL CONGRESS HELD AT TnEHAGUE, May 22-25, 1973) 141 (Belgian Report), 255-56 (French Report) (herein-after cited as Pnocs. OF HAGUE CONG.)-Book III, Chapt. XXI, sects. I and II, 832, 834, THE LA w OF WAR AND PEACE(F. W. Kelsey trans. 1925) in 3 CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE

(CEIP), CLAssics OF INTERNATIONAL LAw (reprinted 1964).3 Id sect. I, 834. 4Id. Chapt. XXII, sect. VIII, 848."Id. Chapt. XXI, sects. VI-VIII, 835-36. 6 d.ects. XI and XIII, 838-39.7 1 AJIL Supp. 96, 102 (1907), 1 FRIDMMAN, THE LAw OF WAR: A DOCtJMENTARY

HISTORY 194, 201 (1972).


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THE AMERICAN JOURNAL OF INTERNATIONAL LAW Vthey abused their privileged position in order to provoke or commit anact of treason. If the parlementaire committed an abuse of confidence,the enemy commander had the right to detain him temporarily. Theseprovisions became Articles 32-34 of the Regulations attached to the HagueConventions of 1899 an d 1907 under the heading "Flags of Truce," withthe addition of a reference to an interpreter accompanying a parlementaireand an express provision that the obtaining of information during a trucewas an abuse of confidence.8An armistice, according to the Brussels Declaration, was a suspensionof military operations by mutual agreement between the belligerents,either general in character and suspending all military operations every-where, or local and applying only between "certain portions of the belli-gerent armies an d within a fixed radius." Once an armistice had beenconcluded, it was to be notified promptly to the competent authorities andtroops, and hostilities were to be suspended at once. An armistice was ofundefined duration and the parties could resume military operations atany time, provided that the enemy was warned in advance within anagreed time limit. Violation of an armistice by one of the parties gavethe other party the right to denounce it; violation by private persons actingon their own initiative entitled the injured party to demand the punish-ment of the offenders and, if necessary, compensation for the losses sus-tained. These provisions 9 ecame Article 36-41 of the Hague Regula-tions of 1899 and 1907, with the addition of a statement that in case ofurgency hostilities could be resumed at once to the article dealing withdenunciation of an armistice after a serious violation.By the end of the Second World War, there was a tendency to regard"truce" an d "armistice" as synonymous, although "truce" was increasinglygiving way to "armistice." "Les deux expressions ont d'ailleurs le m~mesens," wrote Rachelle Bernard in 1947.10 An armistice was a conventionby which the belligerent parties agreed to a formal but temporary cessationof hostilities. It was normally negotiated directly by the two sides, bu toccasionally it arose from the initiative of a neutral state or the Inter-national Committee of the Red Cross." It was a convention of a complexkind but military in its basic arrangements. Its main aim was no t to re-solve political or economic problems but to suspend hostilities fo r a time.It constituted an initial contact between the parties, often leading in duecourse to a peace treaty, but the legal state of war continued; an armisticewas not peace.' 2 Marcel Sibert, writing between the wars, considered8Docuius RELATING TO THE PROGRAm OF THE FIRsT HAGUE PEACE CONFERENCE38-39 (CEIP 1921); THE HAGUE CONVENTIONS OF 1899 (II) and 1907 (IV) RESPcr-m TE LAWs AND CusToMs OF WAR ON LAND 20-23 (CEIP 1915).

9Arts. 48-52.20 Bernard, L'armistice dans le s guerres internationales7 (doctoral thesis No. 454,

Faculty of Law, University of Geneva, 1947)."1Sibert, L'armstice dans le droit des gens, 40 REv. GEN. DE DRorr INT. PuBLic 666(1933); Bernard, supra note 10, at 8; Bliss, The Armistices, 16 AJIL 520 (1922).'2 ibert, supra note 11, at 657, 658, 662, 663, 700; Bernard, supra note 10, at 7-8,

12, 14, 18, 19, 24, 25, 26, 67; STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICTS:A LEGAL TREATISE ON TH E DYNAMIcs OF DisPuTrEs AN D WAR-LAW 636 (1954).

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CEASE-FIRES, TRUCES, AND ARMISTICES

that while in fonner times an armistice had been simply an agreement be-tween belligerents to suspend hostilities in order to prepare for peace inmore favorable conditions than was possible in time of war, the armisticewas becoming a means by which the surrender of the enemy was secured,often including conditions for permanent peace. This, in Sibert's view,was a completely new concept.'There was no clear agreement about acts to be permitted or forbiddenduring an armistice. A demarcation line would be established and pos-sibly also a neutral zone. Each party remained behind the demarcationline, and there was to be no firing or movement across the line by militaryforces or civilians, although troop movements behind the lines werepermitted. But beyond these agreed restrictions, there was only un-certainty, about the supply of food to places under siege, fo r example.'14Violations were deterred by preventive or enforcement measures, butthe ultimate sanction against a substantial and deliberate breach was thethreat to resume hostilities. Minor violations of a particular provision ofthe armistice, committed in good faith, or actions by private persons with-ou t the knowledge of the responsible authorities, were no t 'deemed tojustify denunciation. A distinction had to be made between the seriousnessof the offense and the urgency of the response.15

UN PRACTICEThe creation of the United Nations, with its Security Council havingthe "primary responsibility for the maintenance of international peace and

security," initiated a new era. The blurring of the distinction betweentruce and armistice was halted. A truce was a consequence of the interven-tion of an intermediary, usually a subsidiary organ of the Security Council,whereas an armistice resulted from negotiations between the parties.Moreover, a new concept was introduced, the call to cease-fire or cease-hostilities. This was an emergency appeal by the Security Council, usuallyaccompanied or quickly followed by a request to a subsidiary organ totry to organize a more durable arrangement. There also arose a tendencyto see the terms cease-fire, true, and armistice as representing a sequence,"three stages of progress from war to peace" 16 "a first link in a chainrunning from war to peace." 17The first occasion on which the Security Council acted to put an end tofighting was on August 1, 1947, following the first Dutch "police action"in Indonesia. The Council called on the armed forces of the Netherlands

13 Sibert, supra note 11, at 714.14 Id. 681, 685, Bernard, supra note 10, at 68 , 69, 71-74, 85 .1- Sibert, supra note 12, at 709, 712: Bernard, supra note 11, at 114-16.16 Mohn, Problems of Truce Supervision, INTERNATIONAL CONCILIATION, No. 478,

at 53 (1952).17 astid, PRocs. oF HAGUE CoNe., supra note 1, at 41; id. 152 (French Report).

See a so Report of the Interim Committee, 4 GAOR Supp. (No. 11) 25, paras. 141-43,UN Doc. A/966 (1949) and GOODRICH & SIMONS, TiE UNrrED NATIONS AND THlEMAINTENANCE OF PEACE AND SECuRIT 377 (1955).

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THE AMERICAN JOURNAL OF INTERNATIONAL LAW [and the Republic of Indonesia to "cease hostilities forthwith." 8 A pro-longed wrangle then ensued between the parties as to the precise meaningof the Security Council's resolution.

The members of the Security Council had not of course been engaged inwriting a textbook on international law. They were eleven states re-sponding to a dangerous situation, but with the usual clashes of ideologyand interest. The initiative for convening the Council had been taken byAustralia and India. Australia submitted a proposal which inter aliawouldhave determined that the hostilities constituted a breach of the peace underArticle 39 of Chapter VII of the Charter. The United States wanted totone down the Australian draft so as to avoid any reference to Chapter VII;the Soviet Union would have liked to strengthen the Australian proposal byadding a call for the withdrawal of forces to the positions held before thefighting had begun, while France thought that the resolution should stateexpressly that the Council had taken no decision on its own competence inthe matter. The Council accepted the U.S. amendment, rejected those ofthe Soviet Union and France, and then adopted the remaining paragraphs.The three West European members (Belgium, France, and United King-dom) abstained on all parts, and the Soviet Union (but not Poland)abstained also on the part expressing "concern" about the outbreak of,hostilities, preferring more vigorous language. 9

The Netherlands, although not a member of the Security Council, hadparticipated in its deliberations and was cognizant of its decision. TheIndonesian Republic was not at that time represented in New York, andit was therefore necessary for Secretary-General Trygve Lie to com-municate the text of the resolution to the Indonesian authorities by cable,a problem complicated by the fact that many of the Indonesian nationalistleaders had been detained by the Netherlands authorities two weeksearlier. 'The UN Secretariat, with the best of intentions, transmitted thetext of the resolution to the Indonesians via the Dutch authorities inDjakarta (Batavia). At 14.00 hours on August 3, Dr. A. K. Gani, DeputyPrime Minister and Minister of Economic Affairs in the Indonesian Re-public, was released from detention and at 19.30 hours the same day, H. J.van Mook, the Dutch Lieutenant Governor-General in Indonesia, soughtto hand to Gani the text of the Security Council's resolution. Gani re-fused to accept responsibility for transmitting the cable to the Indonesianleaders in Jogjakarta, so at 00.30 hours on August 4, the Netherlands au-thorities broadcast the text over the Djakarta radio, and later dropped acopy byparachute over Jogjakarta airfield.20 This problem of communicat-ing Security Council resolutions to the parties was to recur in otherconflicts. 2 '

18 SC res. 27, 2 SCOR, R~s. &DEc. 6, UN Doc. S/459 (1947).19 2 SCOR (173rd mtg.) 1700-10 (1947).20 Id. (174th nitg.) 1716-18, UN Doe. S/465; id. (178th mtg.) 1841-42, 1850-51,

UN Doc. S/469. See aLso Report of the Consular Commission, id, Spec. Supp. (No. 4).72,UN. Doe. S/586/Rev. 1.21For communication delays during the first Palestine war, see 3 SCOR (299thmtg.) 4; id (303rd mtg.) 37, 38, 40 (1948).

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In addition to the delay in the receipt of the Security Council's resolu-tion by one of the parties to the conflict, the Dutch and the Indonesiansinterpreted the resolution of the Security Council differently-indeed, itwas in their interests to do so. The Netherlands bad been pursuingspearhead tactics by advancing along the main lines of communication an dseizing strategic points. When the Security Council called for a cessationof hostilities, the Netherlands drew imaginary lines on a map linking theirforward positions and regarded these as the de facto lines separating theforces of the two sides. The Indonesians, by contrast, had been usingguerrilla tactics and thus found many of their active units beleagueredbehind the arbitrary Dutch lines.Both parties accepted that the Security Council's call meant that firinghad to stop, but the Netherlands took -the view that it also meant an endto all military operations, while the Indonesians thought that the only otherrequirement was to stand fast.22 The very existence of the by-passed In-donesian forces was regarded by the Netherlands as a breach of the callto cease hostilities. 23 On August 29, van Mook issued a unilateral declara-tion establishing new demarcation lines.24 The Security Council itselfadded to the linguistic confusion by calling in its first resolution for a cessa-tion of hostilities and then, in three subsequent resolutions, by referring tothe initial decision as a call to cease fire,25 which has a similar but notidentical meaning.

The next attempt by the Security Council to end fighting was duringthe Palestine war of 1948, when the Council used various terms in callingfor a cessation of military action but referred to the subsequent periods ofrelative military inactivity as truces.2 6 After 1948, the Council usually usedthe expression "cease fire" or "cease hostilities" for the initial appeal, re-serving the word "truce" for the subsequent step, usually arranged by a sub-sidiary organ. This was its practice regarding the second Netherlands"police action" in Indonesia,27 Korea,28 Cyprus (1964 and 1974) ,29 the

22 Report of the Consular Commission, supra note 20 , at 71-72, 90-91; 2 SCOR(211th mtg.) 2570, UN Doe. S/581, para. 2 (1947)."3 d. para. 3.24 Report of the Consular Commission, supra note 20, at 130-33.25 SC res. 27 , supra note 18; SC res. 30, 2 SCOR, REs. & DEC. 6, UN Doc. S/525,

I (1947); SC res. 32, id. 7, UN Doe. S/525, III; SC res. 36, id. 9, UN Doc. S/597.26SC res. 43, 3 SCOR, RFs. &DEc. 14, UN Doc. S/714, I (1948); SC res. 46 id. 15,

UN Doc. S/723; SC res. 48 id. 17, UN Doe. S/727; SC res. 49 id. 19, UN Doe.S/773; SC res. 50 id. 20, UN Doe. S/801; SC res. 53 id. 21 , UN Doe. S/875; SCres. 54 id.2, UN Doe. S/902; SC res. 56 id. 24, UN Doe. S/983; SC res. 59 id. 26, UNDoe. S/1045; SC res. 66 id. 30 , UN Doe. S/1169.

;7 SC res. 63 , 3 SCOR, REs. & DEc. 12, UN Doe. S/1150 (1948).:8 SC res. 82, 5 SCOR, REs. &DEc. 4, UN Doe. S/1501 (1950); SC res. 83 id. 5, UN

Doe. S/1511.29 SC res. 193, 19 SCOR, REs. & DEc. 6, UN Doe. S/5868 (1964); id. (1143rd

mtg.) para. 358; SC res. 353, 29 SCOR, REs. & DEc. 7, UN Doe. S/11350 (1974);SC res. 354, id., UN Doe. S/11369; SC res. 355, id. , UN Doe. S/11402; SC res.357, id., UN Doe. S/11446/Rev. 1; SC res. 358, id., UN Doe. S/11448.

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TH E AMERICAN JOURNAL OF INTERNATIONAL LA WDominican Republic (1965), 30 the India-Pakistan war of 1965,31 the Junewar in the Middle East (1967), 32 and the October war in the Middle East(1973) .33 Sometimes the Council added an injunction to desist from orto discontinue or to terminate or to cease all military activities: this wasdone in connection with the India-Pakistan war of 1965,34 the June warin the Middle East,3- the October war in the Middle East,30 and Cyprus(1974) .37 In the Palestine war of 1948, the Council used a variety offormulations in addition to a straightforward call to cease fire-a cessationof all acts of violence (April 1); a cessation of all military or paramilitaryactivities "as well as acts of violence, terrorism and sabotage" (April 17);abstention from hostile military action (May 22); cessation of all acts ofarmed force (May 29); and desisting from further military action (July15).31 In the case of -the second Dutch "police action" in Indonesia, theSecurity Council called fo r the discontinuance of all military operationsan d fo r the cessation of guerrilla warfare.30 A lengthy resolution on theCongo in 1961 called on "the United Nations" to take appropriate measuresto prevent civil war, "including arrangements for cease-fires," and in oneresolution on the Dominican Republic in 1965, the Council asked that "thesuspension of hostilities ... be transformed into a permanent cease-fire." 40The Security Council can also add legitimacy to a cease-fire agreementnegotiated outside its auspices, as happened after the Bangladesh war,41 andafter the Brezhnev-Kissinger agreement during the October war in theMiddle East.42In a number off cases, the Council has called fo r a return to the positionsheld on a specified date, although rarely with much success-after thefirst Dutch "police action" in Indonesia,43 following the offensive by Israelin October 1948, 44 after the French attack on Bizerta (Tunisia) in 1961,41

30SC res. 203, 20 SCOR, REs. & DEC. 10, UN Doc. S/6355 (1965); SC res. 205,id., UN Doc. S/6376; and id. (1233rd mtg.) para. 2.93 SC res. 209, 20 SCOR, REs. & DEC. 13, UN Doc. S/6657 (1965); SC res. 210,

id. 14, UN Doc. S/6662; SC res. 211, id. UN Doc. S/6694; SC. res. 214, id. 16; SCres. 215, id. 16, UN Doc. S/6876; and id. (1244th mtg.), para. 50.32 SC res. 233, 22 SCOR RES. & DEC. 2, UN Doc. S/7935 (1967); SC res. 234,id. 3, UN Doc. S/7940; SC res. 235; id. 4, UN Doc. S/7960; SC res. 236, id. 4; SC

res. 240, id. 7.33 SC res. 338, 28 SCOR, REs. & DEc. 10, UN Doc. S/11036 (1973); SC res. 339,

id. 11, UN Doc. S/11039; SC res. 340, id., UN Doc. S/11046/Rev. 1..34 SC res. 215, supra note 31.35 SC res. 233, 234, 235, 236, supra note 32.36 SC res. 338, 339, supra note 33. 37 SC res. 357, supra note 29.38 SC res. 43, 46, 49, 50, 54, supra note 26.39 SC res. 67 , 4 SCOR, REs. & DEC. 2, UN Doc. S/1234 (1949).40 SC res. 205, supra note 30 .41 SC res. 307, 26 SCOR, REs. &DEC. 11, UN Doc. S/10465 (1971), noted India'sunilateral declaration of a cease-fire in the western theatre and Pakistan's agreement toit, noted also that "consequently a cease-fire and a cessation of hostilities prevail," anddemanded that "a durable cease-fire and cessation of all hostilities in all areas . . . be

strictly observed ..42 SC res. 338, supra note 33. 43 SC res. 36, supranote 25.-43 SCOR (367th mtg.) 38 (1949); SC res. 61 id. REs. & DEC. 28 , UN Doc. S/1070;

SC res. 62. id. 29, UN Doc. S/1080.45 SC res. 164, 16 SCOR, REs. &DEC. 9, UN Doc. S/4882 (1961).

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CEASE-FIRES, TRUCES, AND ARMISTICESduring the India-Pakistan war of 1965,46 during the June and October warsin the Middle East,' 7 and after the Bangladesh war.48

THE SEMANTIc CONFUSIONA number of writers have commented on the linguistic confusion in thepractice of the United Nations. Paul Mohn notes that different terms wereapplied to the same situation and that the same term was used with dif-ferent meanings, 49 and Vladimir Dedijer comments on the inconsistentterminology in UN practice.50 Shabtai Rosene writes of the lack of dis-crimination and precision in the use of terms and considers that truce andarmistice are virtually indistinguishable, a view also put forward by AlfMonsen, the Norwegian Judge Advocate General.5 ' Stone writes that theterm truce has "undergone some transformation in United Nations prac-tice." 52 Bowett finds the distinctions between cease-fire, truce, and arm-istic "not entirely clear." He writes that the Security Council has tended

to use cease-fire and truce interchangeably, though there is "something tobe said" for the view that a truce, as opposed to a cease-fire, is "normallymore than a simple cessation of hostilities and incorporates a complex ofmutual undertakings and conditions." 53 It will be noted that these dis-tinguished writers do not agree with each other.When the International Society fo r Military Law and Law of War metin the Hague in 1973, almost every participant, including ProfessorSuzanne Bastid (the general rapporteur), the national reports fromBelgium, Britain, France, and the United States, and Colonel G. I. A. D.Draper commented on the semantic problem,54 Major Fred K. Green,author of the U.S. report, thought that the term cease-fire "may eventuallysupplant the term armistice. . . ." 55

Some of the confusion about the use of terms can be illustrated by anarticle on the nature and scope of the armistice agreement by Colonel(now Professor) Howard S. Levie, which was published in this Journalin 195 6.5 Levie had studied the "somewhat esoteric documents," in theLibrary of the International Court of Justice in The Hague and had paidparticular attention to "no less than ten major general armistice agree-

46 SC res. 209, 210, 211, 215, supra note 31.47 SC res. 236, supra note 32 and SC res. 339, 340, supra note 33 .4" SC res. 307, supra note 41. 49 Mohn, supra note 16, at 52.ilo DEDIJEn, ON MILTARY CONVENTIONS: AN EssAY ON TH E EvoLrrIoN OF INTEn-

NATIONAL LAW 123 (1961).51 ROSENNE, IsRAEL's ARMIICE AGREEmNTs wrrm TH E ARAB STATES: A JuDICL L

INTERPRETATION 24-25 (1951); PaOCS. OF HAGUE CONG., supra note 1, at 356.5-'STONE, supranote 12, at 645.. 3Bowr-r et al., UNITED NATIONS FoRcEs: A LEGAL STUDY OF UNrrED NATiONS

PRAcricE 73-74 (1964).54 PRoc. OF HAGUE CONG., supra note 1, at 31 (Bastid), 143 (Belgian Report), 198-

200 (U.S. Report), 253 (French Report), 365 (British Report), 375 (Draper).5 Id. 200 (US Report).15t evie, The Nature and Scope of the Armistice Agreement, 50 AJIL 880-906(1956).

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THE AMERICAN JOURNAL OF INTERNATIONAL LAW [ments" which had been concluded since the Second World War."' Levieregarded the terms cease-fire, truce, and armistice as synonymous, sinceone of his ten was a cease-fire (Kashmir), one was a truce (the agreementbetween the Netherlands an d Indonesia of January 17, 1948), while theremaining eight were armistice agreements proper (the four between Israelan d the Arab States in 1949, the Korean armistice in 1953, and the threearmistices in Indo-China in 1954). Levie, no doubt for good reasons, doesnot refer to the cease-fires or truces sponsored by the Security Council inPalestine in 1948; the bilateral cease-fire agreements between Israel andEgypt, Israel and Jordan, and Israel and Syria in 1948 and 1949, whichpreceded the general armistice agreements; or the agreement between theNetherlands and Indonesia of August 1, 1949, following the second Dutch"police action." Moreover, Levie seems not to have carried his in-vestigations into the Kashmir case far enough. The document which hecites (S/995) 5 was not an agreement between the parties but a resolutionof the UN Commission for India and Pakistan (UNCIP). 51' The cease-firepart of UN CIP's resolution was formally accepted by India and Pakistan inJanuary 1949,60 but the truce part of the resolution never entered into force.Levie explains the absence of arrangements for demarcating the line sepa-rating the forces of the tw o sides as due to the fact that Pakistan hadagreed to withdraw its forces from Jammu and Kashmir,61 but the cease-fireline was, in fact, demarcated and agreed by military representatives ofthe parties at a meeting in Karachi on July 27, 1949.62 Levie writes thatneither UNCIP nor the parties raised the question of prisoners of war, 3but that question was dealt with in the truce agreement between the Com-manders-in-Chief of India and Pakistan of January 15, 1949, which theparties never ratified, as well as in UNCIP's ow n detailed truce proposals.6 4In addition, UNCIP made representations to India when Pakistan com-plained that certain prisoners in Kashmir had been given harsh sentencesby the Maharajah's Government, although India objected that the mattercould not be dealt with until a truce agreement had been formally signedan d the Plebiscite Adminstrator had been appointed.65

Other scholars and practitioners have unwittingly caused confusion byusing terms loosely or inconsistently. The U.S. Army Field Manual startsits definition of armistice with the words: "An armistice (or truce as it is5 d. 880 and n. 65.581d. n. 5. The date of the cease-fire resolution was August 13, 1948, not September

13, as given by Levie.59 3 SCOR, Supp. (Nov. 1948) 32-34, UN Doc. S/1100, para. 75.6D4 SCOR, Spec. Supp. (No. 7) 169-72, UN Doc. S/1430, Annex 47 (1949).61 Levie, supra note 56, at 894-95.624 SCOR, Spec. Supp. (No. 7), supranote 60 , at 126-29, Annex 26.63 Levie, supra note 56, at 899.644 SCOR, Spec. Supp. (No. 7) , supra note 60, at 105, 110-11, 112, 171-72, 182

(Section E.3 to the Appendix to Annex 17, para. 10 of Annex 20, Section I1I.D of Annex21, Section B.5 of Annex 47, and para. 16 of Annex 47).65 Id. 64-65 (Appendix 11).

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sometimes called) ... ."61 The author of the official U.S. history of thearmistice negotiations in Korea writes that for literary reasons, "the termsIarmistice,' 'truce,' and 'cease-fire' have been used interchangeably," apractice also followed by General Mark Clark.6 7

There has been a tendency to blame the UN Security Council for thesemantic muddle, and this was for a time justified, but only during ashort period in 1948-49, and then only regarding Palestine and the secondphase in Indonesia. On all other occasions, the Security Council and itssubsidiary organs have used a consistent terminology. As noted above, partof the confusion seems to have arisen because in the Palestine case in 1948,the resolutions of the Security Council calling for an end to the fightingused phrases like cease-fire, but when the resolutions of the Council tookeffect, the period of "no fighting" was known as a truce.

THE ROLE OF THE SECUIrTY COUNCILThe Security Council sees its task as to call for a halt to the fighting,leading the parties to issue cease-fire orders to their forces. A subsidiary

organ in the field then negotiates with the parties a truce of a more detailedand durable kind. A cease-fire is simply a suspension of acts of violence bymilitary and paramilitary forces, resulting from the intervention of a thirdparty. It is a preliminary and provisional step, providing a breathingspace for the negotiation of more lasting agreements. 68

By looking at the Indonesian (first phase) and Kashmir cases (1948-49) we can discern what the Security Council, its subsidiary organs, andthe parties considered was involved in a cease-fire and what was or wouldhave been involved in a truce. The crucial documents are the truce agree-ment between the Netherlands and the Indonesian Republic signed onboard the USS Renville on January 17, 1948, and the resolution on Kashmiradopted by the Commission for India and Pakistan (UNCIP) on August 13,1948 which envisaged that the parties would issue separate cease-fireorders and also set forth the principles of an evenutual truce agreement.The Commanders-in-Chief of India and Pakistan agreed in January 1949that "the cease-fire [in Kashmir] . . . should be advanced from an informalto a formal basis," and an agreement on the delineation of the cease-fireline was reached six months later. Agreement between the parties on atruce was never reached, however, though one may speculate as to whatit might have contained by referring to the unratified truce agreementbetween the two Commanders-in-Chief in January 1949, as well as toUNCIP's own truce proposals of April 15 and 28, 1949, which the partiesrejected."

' 'THE LAW OF LAND WARFARE, FM27-10, para. 479 (1956).,42 HERMES, UNITED STATE ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTINGFRONT 13, n. 1 (1966); CLARK, FROM THE DANUBE TO THE YALU (1954).

"1 ROSENNE, supra note 51, at 25; Mohn, supra note 16 , at 57; Pnocs. OF HAGUECONG., upra note 1, at 35 and 36 (Bastid), 152 (Belgian Report), 257 (French Re -port), 355 (Norwegian Report).

-13 SCOR, Spec. Supp. (No. 1) 68-69, 72-75, 77, UN Doe. S/649/Rev. 1, Ap-

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A Cease-fire included:(1) Issuance by the parties of cease-fire orders to all forces under-theircontrol;(2) Parties free to adjust their defensive positions behind the cease-

fire lines, but no augmentation of military forces to be allowed nor theintroduction of additional military potential;(3) Parties to confer regarding local changes in the disposition ofmilitary forces, with a view to avoiding incidents and facilitating thecease-fire;(4) Demarcation of de facto lines separating the forces of the twosides, and possibly also demilitarized zones;(5) Military observers responsible to the Security Council or a sub-sidiary organ -tosupervise the observance of the cease-fire.A Truce included:

(1). Progressive thinning out or withdrawal of regular and irregularforces (Kashmir): gradual reduction of the armed forces of bothparties, withdrawal of forces from demilitarized zones, an d evacuationof by-passed military units (Indonesia);(2) Arrangements fo r the administration of areas from which mili-tary forces would withdraw an d provision of military an d civil forcesto assist in maintaining law an d order (Kashmir): civil police (includ-ing temporary use of military personnel under civilian control) tomaintain law and order in the demilitarized zones, an d cooperationbetween the police forces of the two sides (Indonesia);(3) Roads and waterways to be open fo r the movement of refugeesand all other nonmilitary personnel (Kashmir): restoration of con-ditions for normal transportation, communications, and trade (Indo-nesia);(4) Release of prisoners of war and political prisoners, and thereturn of abducted women (Kashmir): mutual release of prisonerswithout regard to the numbers held (Indonesia);(5) Measures to be taken for guaranteeing humari and politicalrights, including the repeal of emergency legislation (Kashmir): gen-eral political amnesty, guarantees of free expression of opinion andother basic rights, an d prohibition of intimidation and reprisals (In-doxesia).

A cease-fire was thus a necessary element in a truce: it could be a preludeto a truce (as envisaged fo r Kashmir) or the two stages could be conflated(as in Indonesia).But what, in the practice of the Security Council, has been the differ-pendices IX, XI, and XIV (1948); id., Supp. (Nov. 1948), supra note 59, at 32-34(para. 75); 4 SCOR, Supp. (Jan. 1949) 23-25, UN Doc. S/1196, para. 15 ; id., Spec,Supp. (No. 7), supra note 60, at 102-05, 111-13, 126-29, 169-72, Annexes 17, 21, 26,and 47 .

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ence between a truce and a general armistice? The cases on which onecan base an answer are the armistice agreements between Israel and itsfour Arab neighbors in 1949 '1 and the armistice agreement between theUnified Command in Korea, as one party, and North Korea and China, asthe other, in 1953."'The truce in Inddnesia in 1948 and the proposed truces in Kashmir in1948 an d 1949 arose from initiatives of subsidiary organs of the SecurityCouncil (the Good Offices Committee in the Indonesian case an d the UNCommission for India and Pakistan in Kashmir), whereas the five armisticeagreements resulted from direct negotiations between the parties. In thepractice of the Security Council an armistice is distinguished from acease-fire or truce by the fact that it is an agreement negotiated directly be-tween the belligerents. A third party may assist the two sides to agree onterms of an armistice, as did Ralph Bunche in the Middle East in 1949;negotiations may continue over months or, as in the Korean case, years

before agreement is reached. But the agreement is between the parties; anarmistice has never been imposed by the Security Council. An armistice"defines a situation which the various parties brought about by their ownagreement . . ." (Rosenne ), 7 2 and is "a consensual contract reached bymutual agreement . . ." (Dedijer) . 73 In the absence of agreement to thecontrary, an armistice is of unlimited duration.74Second, armistice agreements have concerned only military matters. Itwas widely assumed in the Middle East in 1949, although possibly not byall the Arabs, and it was explicitly laid down in the Korean armistice in1953, that political negotiations were to follow; and all five armistice agree-ments were expressly declared to be dictated only by military consider-ations.7- Responsibility for political negotiations in the Middle East hadbeen laid on the UN Palestine Conciliation Commission, which had beenestablished by the General Assembly on December 11, 1948,7 one of thefunctions of which was to promote "a peaceful adjustment of the futuresituation of Palestine." 77 In the Korean case, negotiations on substantiveissues were to be dealt with at "a political conference of a higherlevel.. .. " 78

Third, all five armistice agreements provided for the creation of armisticecommissions, composed of an equal number of representatives of the two704 SCOR, Spec. Supp. (No. 1) Israel-Jordan, UN Doe. S/1302/Rev. 1 (1949); id.Spec. Supp. (No. 2) Israel-Syria, UN Doe. 1353/Rev. 1; id. Spec. Supp. (No. 3)Israel-Egypt, UN Doc. 1264/Rev. 1; id. Spec. Supp. (No. 4) Israel-Lebanon, UN Doe.

S/1296.71 8 SCOR, Supp. (July-Sept. 1953), UN Does. S/3079, Appendices A and B, and

S/3084.7 IROSENNE, supra note 51, at 30 . 7 DEDIJEB, supra note 50 , at 67 .74 RosENNE, supra note 51, at 28 , 82; Levie, supra note 56 , at 881, 892.7S Article IV of the Israel-Egypt armistice agreement, Article II of the Israel-Jordan,

Israel-Lebanon, and Israel-Syria agreements (supra note 70) and preamble to theKorean armistice agreement (supra note 71).76G.A. res. 194 (Ill). 77G.A. res. 186 (S-2).7- Para. 60 of the Korean armistice agreement, supra note 71 .

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sides, to supervise the implementation of the agreements and to settlecomplaints of violations.79One cannot assert unconditionally that none of these elements wouldhave been present if a truce in Kashmir had been agreed in 1948 or 1949.The evidence is not quite conclusive. What one can certainly affirm, how-ever, is that just as truces have usually been more complex than simplecease-fires, so the five armistice agreements were more elaborate thanany of the Security Council truces, no doubt because they were thoughtof as more long term in nature.Several writers, with the Middle East armistice agreements primarily inmind, see an armistice as implying a positive commitment to or formalacceptance of an eventual peaceful settlement (Mohn), a step towardsthe termination of war (Stone) , 1 a preliminary step to a peace treaty(Dedijer), 2 a milestone on the way to a peace treaty (Bastid); 13 but thereis no dissent from the conclusion that an armistice is not peace and doesnot end the legal state of war. 4There has, of course, been significant experience since the Second WorldWar outside the auspices of the Security Council, particularly the threeGeneva agreements on Indo-China in 1954 and the Paris accords onVietnam in 1973. But the practice of -the Security Council has coincidedwith the advice of the so-called Little Assembly (Interim Committee) inJuly 1949-that the Security Council issues the first appeal or, acting underChapter VII, makes an order for the cessation of fighting; that subsidiaryorgans of the Security Council initiate truce arrangements; and that theparties themselves negotiate the armistice. 5 This was the tenor of RalphBunche's report to -theSecurity Council on July 21, 1949 regarding the fourarmistice agreements on the Middle East. The mandatory truce of July 15,1948, was of indefinite duration and included a permanent injunctionagainst resort to force, but it seemed to Bunche unnecessary to imposeon the parties all of the "burdensome restrictions" of the second truce.The truce was now obsolete and had been superseded by effective armisticeagreements voluntarily negotiated by the parties. The Security Councilmight now reaffirm its order to desist from military action and call on theparties to continue an unconditional cease-fire. 8 Bunches reference to thebinding truce of July 15, 1948, as being no longer necessary was changedon the initiative of France and Canada so that the resolution passed by the

79 Id. paras. 19-35, Article X of the Israel-Egypt agreement, Article XI of Israel-Jordan agreement, and Article VIII of the Israel-Lebanon and Israel-Syria agreements,supra note 70 .

80 Mohn, supra note 16, at 53, 58. 81 STONE, supra note 12, at 636.82 DEDIJER, supra note 50, at 130.83 Pnocs. OF HAGuE CONG., supra note 1, at 33.84 ROsE'NNE, supra note 51 , at 83 ; STONE, supra note 12, at 638, 643; Levie, supranote 56, at 884; DEDIJER, supra note 50, at 69; Pnocs. OF HAGUE CONG. supra note 1,at 33 (Bastid), 355 (Norwegian Report), 379 (Draper); 20PPENHiM, INTEnNATIONALLA W 547, 597 (H . Lauterpacht, 7th ed. 1952).854 GAOR, Supp. (No. 11) 25, paras. 141-62, UN Doe. A/966 (1949).864 SCOR, Supp. -(Aug. 1949) 6, paras. 1-3 of part III of UN Doe. S/1357.

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1977] CEASE-FIfES, TRUCES, AND ARMISTICES 473Security Council stated that the four armistice agreements supersededboth the first and recommended truce of May 29 and the second andbinding truce of July 15. But to be on the safe side, the Security Councilonce more affirmed, "pending the final peace settlement," the order to ob-serve an unconditional cease-fire which had been part of the now supersededmandatory resolution of July 15, "bearing in mind that the several ArmisticeAgreements include firm pledges against any further acts of hostility... -87

7 Id. (434th mtg.) 35 (1949), UN Doe. S/1364; id (435th mtg.) 2-3, 5-9, UNDoe. S/1367; id Supp. (Aug. 1949) 8, UN Doc. S/1362.

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Bailey, Security Council Practice

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