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CEASE-FIRES, TRUCES, AND ARMISTICES IN THE

PRACTICE OF THE UN SECURITY COUNCIL

By Sydney D. Bailey

There is no question that there has been confusion about the precise meaning of the terms cease-fire, truce, and armistice. The oldest term is truce, which in the Middle Ages usually had a religious connotation as in the phrase "Truce of God." I Hugo Grotius used truce to mean an agreement by which warlike acts are for a time abstained from, though the state of war continues-"a period of rest in war, not a peace." 2 If hostilities were resumed after a truce, according to Grotius, there would be no 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 of forces or by officers of lower rank.4 In the absence of agreement to the contrary, 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 forbidden were the bribery of enemy garrisons and the seizure of places held by the enemy.,- If a truce was violated, the injured party was free to resume hostilities "even without declaring war." Private acts did not constitute a violation, however, unless there was public command or approval.6 When the codification of international law began in the second half of the nineteenth century, a truce was the procedure by which belligerents entered into parleys, and an armistice was an actual agreement to suspend military operations. According to Articles 43-45 of the Brussels Declaration of August 27, 1874, a parlementaire was a person who had been authorized by one of the belligerents to enter into communication with the other side. He advanced bearing a white flag, accompanied by a bugler or drummer, sometimes also by a flag bearer. The enemy commander was not in all cases and under all conditions obliged to receive a parlementaire and was, in any case, entitled to take "all measures necessary for preventing the bearer of the flag of truce taking advantage of his stay within the radius of the enemy's position to the prejudice of the latter." I The parlementaire and the accompanying party were inviolable unless
1 6(1)
HAGUE, RECUEILS DE LA Socx*- INTERNATIONALE DE DRolr PENAL MILrAIRE E DE

DROrr DE LA GUERRE (PROCS. OF TIE SIXTH INTERNATIONAL CONGRESS HELD AT TnE

May 22-25, 1973) 141 (Belgian Report), 255-56 (French Report) (hereinafter cited as Pnocs. OF HAGUE CONG.) -Book III, Chapt. XXI, sects. I and II, 832, 834, THE LAw OF WAR AND PEACE

(F. W. Kelsey trans. 1925) in

3 CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE

(CEIP), CLAssics OF INTERNATIONAL LAw (reprinted 1964). 4 Id. Chapt. XXII, sect. VIII, 848. 3 Id sect. I, 834. "Id. Chapt. XXI, sects. VI-VIII, 835-36. 6Id. sects. XI and XIII, 838-39.
7

AJIL Supp. 96, 102 (1907), 1

FRIDMMAN,

THE

LAw OF WAR:

DOCtJMENTARY

HISTORY 194, 201 (1972).

THE AMERICAN JOURNAL OF INTERNATIONAL LAW

[Vol. 71 V

they abused their privileged position in order to provoke or commit an act of treason. If the parlementaire committed an abuse of confidence, the enemy commander had the right to detain him temporarily. These provisions became Articles 32-34 of the Regulations attached to the Hague Conventions of 1899 and 1907 under the heading "Flags of Truce," with the addition of a reference to an interpreter accompanying a parlementaire and an express provision that the obtaining of information during a truce was an abuse of confidence.8 An armistice, according to the Brussels Declaration, was a suspension of military operations by mutual agreement between the belligerents, either general in character and suspending all military operations everywhere, or local and applying only between "certain portions of the belligerent armies and within a fixed radius." Once an armistice had been concluded, it was to be notified promptly to the competent authorities and troops, and hostilities were to be suspended at once. An armistice was of undefined duration and the parties could resume military operations at any time, provided that the enemy was warned in advance within an agreed time limit. Violation of an armistice by one of the parties gave the other party the right to denounce it; violation by private persons acting on their own initiative entitled the injured party to demand the punishment of the offenders and, if necessary, compensation for the losses sustained. These provisions 9 became Article 36-41 of the Hague Regulations of 1899 and 1907, with the addition of a statement that in case of urgency hostilities could be resumed at once to the article dealing with denunciation of an armistice after a serious violation. By the end of the Second World War, there was a tendency to regard "truce" and "armistice" as synonymous, although "truce" was increasingly giving way to "armistice." "Les deux expressions ont d'ailleurs le m~me sens," wrote Rachelle Bernard in 1947.10 An armistice was a convention by which the belligerent parties agreed to a formal but temporary cessation of hostilities. It was normally negotiated directly by the two sides, but occasionally it arose from the initiative of a neutral state or the International Committee of the Red Cross." It was a convention of a complex kind but military in its basic arrangements. Its main aim was not to resolve political or economic problems but to suspend hostilities for a time. It constituted an initial contact between the parties, often leading in due course to a peace treaty, but the legal state of war continued; an armistice was not peace.' 2 Marcel Sibert, writing between the wars, considered 8Docuius RELATING TO THE PROGRAm OF THE FIRsT HAGUE PEACE CONFERENCE
38-39 (CEIP 1921); THE
m
HAGUE CONVENTIONS OF 1899 (II) and 1907 (IV) RESPcrTE LAWs AND CusToMs OF WAR ON LAND 20-23 (CEIP 1915). 9Arts. 48-52.

20 Bernard, L'armistice dans les guerres internationales 7 (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). '2Sibert, 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 THE DYNAMIcs OF DisPuTrEs AND WAR-LAW 636 (1954).

1977]

CEASE-FIRES,

TRUCES,

AND ARMISTICES

that while in fonner times an armistice had been simply an agreement between belligerents to suspend hostilities in order to prepare for peace in more favorable conditions than was possible in time of war, the armistice was 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 forbidden during an armistice. A demarcation line would be established and possibly also a neutral zone. Each party remained behind the demarcation line, and there was to be no firing or movement across the line by military forces or civilians, although troop movements behind the lines were permitted. But beyond these agreed restrictions, there was only un14 certainty, about the supply of food to places under siege, for example.' Violations were deterred by preventive or enforcement measures, but the ultimate sanction against a substantial and deliberate breach was the threat to resume hostilities. Minor violations of a particular provision of the armistice, committed in good faith, or actions by private persons without the knowledge of the responsible authorities, were not 'deemed to justify denunciation. A distinction had to be made between the seriousness of the offense and the urgency of the response. 15 UN
PRACTICE

The creation of the United Nations, with its Security Council having the "primary responsibility for the maintenance of international peace and security," initiated a new era. The blurring of the distinction between truce and armistice was halted. A truce was a consequence of the intervention 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 ceasehostilities. This was an emergency appeal by the Security Council, usually accompanied or quickly followed by a request to a subsidiary organ to try to organize a more durable arrangement. There also arose a tendency to 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 chain running from war to peace." 17 The first occasion on which the Security Council acted to put an end to fighting was on August 1, 1947, following the first Dutch "police action" in Indonesia. The Council called on the armed forces of the Netherlands
13
14

Sibert, supra note 11, at 714.

Id. 681, 685, Bernard, supra note 10, at 68, 69, 71-74, 85. Mohn, Problems of Truce Supervision, INTERNATIONAL CONCILIATION, No. 478,

1- Sibert, supra note 12, at 709, 712: Bernard, supra note 11, at 114-16. 16

at 53 (1952).

17Bastid, 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 THlE MAINTENANCE OF PEACE AND SECuRIT 377 (1955).

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and the Republic of Indonesia to "cease hostilities forthwith." 8 A prolonged wrangle then ensued between the parties as to the precise meaning of the Security Council's resolution. The members of the Security Council had not of course been engaged in writing a textbook on international law. They were eleven states responding to a dangerous situation, but with the usual clashes of ideology and interest. The initiative for convening the Council had been taken by Australia and India. Australia submitted a proposal which inter alia would have determined that the hostilities constituted a breach of the peace under Article 39 of Chapter VII of the Charter. The United States wanted to tone down the Australian draft so as to avoid any reference to Chapter VII; the Soviet Union would have liked to strengthen the Australian proposal by adding a call for the withdrawal of forces to the positions held before the fighting had begun, while France thought that the resolution should state expressly that the Council had taken no decision on its own competence in the matter. The Council accepted the U.S. amendment, rejected those of the Soviet Union and France, and then adopted the remaining paragraphs. The three West European members (Belgium, France, and United Kingdom) 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, had participated in its deliberations and was cognizant of its decision. The Indonesian Republic was not at that time represented in New York, and it was therefore necessary for Secretary-General Trygve Lie to communicate the text of the resolution to the Indonesian authorities by cable, a problem complicated by the fact that many of the Indonesian nationalist leaders had been detained by the Netherlands authorities two weeks earlier. 'The UN Secretariat, with the best of intentions, transmitted the text of the resolution to the Indonesians via the Dutch authorities in Djakarta (Batavia). At 14.00 hours on August 3, Dr. A. K. Gani, Deputy Prime Minister and Minister of Economic Affairs in the Indonesian Republic, was released from detention and at 19.30 hours the same day, H. J. van Mook, the Dutch Lieutenant Governor-General in Indonesia, sought to hand to Gani the text of the Security Council's resolution. Gani refused to accept responsibility for transmitting the cable to the Indonesian leaders in Jogjakarta, so at 00.30 hours on August 4, the Netherlands authorities broadcast the text over the Djakarta radio, and later dropped a copy byparachute over Jogjakarta airfield.20 This problem of communicating Security Council resolutions to the parties was to recur in other
2 conflicts. '

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,
18

UN Doc. S/469. See aLso Report of the Consular Commission, id, Spec. Supp. (No. 4) .72, Doe. S/586/Rev. 1. UN. 21 For communication delays during the first Palestine war, see 3 SCOR (299th mtg.) 4; id (303rd mtg.) 37, 38, 40 (1948).

1977]

CEASE-FIRES, TRUCES, AND ARMISTICES

In addition to the delay in the receipt of the Security Council's resolution by one of the parties to the conflict, the Dutch and the Indonesians interpreted the resolution of the Security Council differently-indeed, it was in their interests to do so. The Netherlands bad been pursuing spearhead tactics by advancing along the main lines of communication and seizing strategic points. When the Security Council called for a cessation of hostilities, the Netherlands drew imaginary lines on a map linking their forward positions and regarded these as the de facto lines separating the forces of the two sides. The Indonesians, by contrast, had been using guerrilla tactics and thus found many of their active units beleaguered behind the arbitrary Dutch lines. Both parties accepted that the Security Council's call meant that firing had to stop, but the Netherlands took -the view that it also meant an end to all military operations, while the Indonesians thought that the only other requirement was to stand fast.22 The very existence of the by-passed Indonesian forces was regarded by the Netherlands as a breach of the call to cease hostilities. 23 On August 29, van Mook issued a unilateral declaration establishing new demarcation lines.2 4 The Security Council itself added to the linguistic confusion by calling in its first resolution for a cessation of hostilities and then, in three subsequent resolutions, by referring to the initial decision as a call to cease fire, 2 5 which has a similar but not identical meaning. The next attempt by the Security Council to end fighting was during the Palestine war of 1948, when the Council used various terms in calling for a cessation of military action but referred to the subsequent periods of relative military inactivity as truces.2 6 After 1948, the Council usually used the expression "cease fire" or "cease hostilities" for the initial appeal, reserving the word "truce" for the subsequent step, usually arranged by a subsidiary 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). "3Id. 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; SC res. 54 id. UN Doe. S/902; SC res. 56 id. 24, UN Doe. S/983; SC res. 59 id. 26, UN 22, Doe. 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.8, 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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Dominican Republic (1965), 30 the India-Pakistan war of 1965,31 the June

war 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 or to discontinue or to terminate or to cease all military activities: this was done in connection with the India-Pakistan war of 1965, 34 the June war in 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 of formulations in addition to a straightforward call to cease fire-a cessation of all acts of violence (April 1); a cessation of all military or paramilitary activities "as well as acts of violence, terrorism and sabotage" (April 17); abstention from hostile military action (May 22); cessation of all acts of armed force (May 29); and desisting from further military action (July 15).31 In the case of -the second Dutch "police action" in Indonesia, the Security Council called for the discontinuance of all military operations and for the cessation of guerrilla warfare.30 A lengthy resolution on the Congo in 1961 called on "the United Nations" to take appropriate measures to prevent civil war, "including arrangements for cease-fires," and in one resolution on the Dominican Republic in 1965, the Council asked that "the 0 suspension of hostilities ... be transformed into a permanent cease-fire." 4 The Security Council can also add legitimacy to a cease-fire agreement negotiated outside its auspices, as happened after the Bangladesh war,41 and after the Brezhnev-Kissinger agreement during the October war in the 42 Middle East. In a number off cases, the Council has called for a return to the positions held on a specified date, although rarely with much success-after the first Dutch "police action" in Indonesia, 43 following the offensive by Israel 4 in October 1948, 44 after the French attack on Bizerta (Tunisia) in 1961, 1
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; SC

res. 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 36 SC 38 SC 39 SC

res. 233, 234, 235, 236, supra note 32. res. 338, 339, supra note 33. 37 SC res. 357, supra note 29. res. 43, 46, 49, 50, 54, supra note 26.

res. 67, 4 SCOR, REs. & DEC. 2, UN Doc. S/1234 (1949). SC res. 205, supra note 30. 41 SC res. 307, 26 SCOR, REs. & DEC. 11, UN Doc. S/10465 (1971), unilateral declaration of a cease-fire in the western theatre and Pakistan's it, noted also that "consequently a cease-fire and a cessation of hostilities demanded that "a durable cease-fire and cessation of all hostilities in all
40

noted India's agreement to prevail," and areas . . . be

strictly observed .. 42 SC res. 338, supra note 33.

43 SC res. 36, supra note 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).

1977]

CEASE-FIRES, TRUCES, AND ARMISTICES

during the India-Pakistan war of 1965,46 during the June and October wars 8 in the Middle East,' 7 and after the Bangladesh war.4
THE SEMANTIc CONFUSION

A number of writers have commented on the linguistic confusion in the practice of the United Nations. Paul Mohn notes that different terms were applied to the same situation and that the same term was used with different meanings, 49 and Vladimir Dedijer comments on the inconsistent terminology in UN practice.50 Shabtai Rosene writes of the lack of discrimination and precision in the use of terms and considers that truce and armistice are virtually indistinguishable, a view also put forward by Alf Monsen, the Norwegian Judge Advocate General.5 ' Stone writes that the term truce has "undergone some transformation in United Nations practice." 52 Bowett finds the distinctions between cease-fire, truce, and armistic "not entirely clear." He writes that the Security Council has tended to use cease-fire and truce interchangeably, though there is "something to be said" for the view that a truce, as opposed to a cease-fire, is "normally more than a simple cessation of hostilities and incorporates a complex of 3 mutual undertakings and conditions." 5 It will be noted that these distinguished writers do not agree with each other. When the International Society for Military Law and Law of War met in the Hague in 1973, almost every participant, including Professor Suzanne Bastid (the general rapporteur), the national reports from Belgium, 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 eventually
supplant the term armistice. .
. ."

55

Some of the confusion about the use of terms can be illustrated by an article on the nature and scope of the armistice agreement by Colonel (now Professor) Howard S. Levie, which was published in this Journal in 195 6 .5 Levie had studied the "somewhat esoteric documents," in the Library of the International Court of Justice in The Hague and had paid particular attention to "no less than ten major general armistice agree46 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 THE EvoLrrIoN OF INTEnNATIONAL LAW 123 (1961).

51 ROSENNE, IsRAEL's ARMIICE AGREEmNTs wrrm THE ARAB STATES: A JuDICL L INTERPRETATION 24-25 (1951); PaOCS. OF HAGUE CONG., supra note 1, at 356. 5-'STONE, supra note 12, at 645. 3 . Bowr-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), 198200 (U.S. Report), 253 (French Report), 365 (British Report), 375 (Draper).

5 Id. 200 (US Report). 15t Levie, The Nature and Scope of the Armistice Agreement, 50 AJIL 880-906 (1956).

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ments" which had been concluded since the Second World War."' Levie regarded the terms cease-fire, truce, and armistice as synonymous, since one of his ten was a cease-fire (Kashmir), one was a truce (the agreement between the Netherlands and Indonesia of January 17, 1948), while the remaining eight were armistice agreements proper (the four between Israel and the Arab States in 1949, the Korean armistice in 1953, and the three armistices in Indo-China in 1954). Levie, no doubt for good reasons, does not refer to the cease-fires or truces sponsored by the Security Council in Palestine in 1948; the bilateral cease-fire agreements between Israel and Egypt, Israel and Jordan, and Israel and Syria in 1948 and 1949, which preceded the general armistice agreements; or the agreement between the Netherlands and Indonesia of August 1, 1949, following the second Dutch "police action." Moreover, Levie seems not to have carried his investigations into the Kashmir case far enough. The document which he cites (S/995) 5 was not an agreement between the parties but a resolution of the UN Commission for India and Pakistan (UNCIP). 51' The cease-fire part of UNCIP's resolution was formally accepted by India and Pakistan in
January 1949,60 but the truce part of the resolution never entered into force.

Levie explains the absence of arrangements for demarcating the line separating the forces of the two sides as due to the fact that Pakistan had agreed to withdraw its forces from Jammu and Kashmir, 61 but the cease-fire line was, in fact, demarcated and agreed by military representatives of the parties at a meeting in Karachi on July 27, 1949. 62 Levie writes that neither UNCIP nor the parties raised the question of prisoners of war, 3 but that question was dealt with in the truce agreement between the Commanders-in-Chief of India and Pakistan of January 15, 1949, which the 6 parties never ratified, as well as in UNCIP's own detailed truce proposals. 4 In addition, UNCIP made representations to India when Pakistan complained that certain prisoners in Kashmir had been given harsh sentences by the Maharajah's Government, although India objected that the matter could not be dealt with until a truce agreement had been formally signed and the Plebiscite Adminstrator had been appointed.65 Other scholars and practitioners have unwittingly caused confusion by using terms loosely or inconsistently. The U.S. Army Field Manual starts its definition of armistice with the words: "An armistice (or truce as it is 5 Id. 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), supra note 60, at 126-29, Annex 26.

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 Annex 21, Section B.5 of Annex 47, and para. 16 of Annex 47). 65 Id. 64-65 (Appendix 11).

63

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TRUCES, AND ARMISTICES

sometimes called) ... ." 61 The author of the official U.S. history of the armistice negotiations in Korea writes that for literary reasons, "the terms Iarmistice,' 'truce,' and 'cease-fire' have been used interchangeably," a 6 practice also followed by General Mark Clark. 7 There has been a tendency to blame the UN Security Council for the semantic muddle, and this was for a time justified, but only during a short period in 1948-49, and then only regarding Palestine and the second phase in Indonesia. On all other occasions, the Security Council and its subsidiary organs have used a consistent terminology. As noted above, part of 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 fighting used phrases like cease-fire, but when the resolutions of the Council took effect, the period of "no fighting" was known as a truce. THE
ROLE OF THE SECUIrTY COUNCIL

The 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 detailed and durable kind. A cease-fire is simply a suspension of acts of violence by military and paramilitary forces, resulting from the intervention of a third party. It is a preliminary and provisional step, providing a breathing space for the negotiation of more lasting agreements. 68 By looking at the Indonesian (first phase) and Kashmir cases (194849) we can discern what the Security Council, its subsidiary organs, and the parties considered was involved in a cease-fire and what was or would have been involved in a truce. The crucial documents are the truce agreement between the Netherlands and the Indonesian Republic signed on board the USS Renville on January 17, 1948, and the resolution on Kashmir adopted by the Commission for India and Pakistan (UNCIP) on August 13, 1948 which envisaged that the parties would issue separate cease-fire orders and also set forth the principles of an evenutual truce agreement. The Commanders-in-Chief of India and Pakistan agreed in January 1949 that "the cease-fire [in Kashmir] . . . should be advanced from an informal to a formal basis," and an agreement on the delineation of the cease-fire line was reached six months later. Agreement between the parties on a truce was never reached, however, though one may speculate as to what it might have contained by referring to the unratified truce agreement between the two Commanders-in-Chief in January 1949, as well as to UNCIP's own truce proposals of April 15 and 28, 1949, which the parties rejected."
'THE LAW OF LAND WARFARE, FM27-10, para. 479 (1956). HERMES, UNITED STATE ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTING FRONT 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 HAGUE CONG., upra note 1, at 35 and 36 (Bastid), 152 (Belgian Report), 257 (French Report), 355 (Norwegian Report). -13 SCOR, Spec. Supp. (No. 1) 68-69, 72-75, 77, UN Doe. S/649/Rev. 1, Ap'

,42

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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 ceasefire lines, but no augmentation of military forces to be allowed nor the introduction of additional military potential; (3) Parties to confer regarding local changes in the disposition of military forces, with a view to avoiding incidents and facilitating the cease-fire; (4) Demarcation of de facto lines separating the forces of the two sides, and possibly also demilitarized zones; (5) Military observers responsible to the Security Council or a subsidiary organ -tosupervise the observance of the cease-fire. A Truce included: (1). Progressive thinning out or withdrawal of regular and irregular forces (Kashmir): gradual reduction of the armed forces of both parties, withdrawal of forces from demilitarized zones, and evacuation of by-passed military units (Indonesia); (2) Arrangements for the administration of areas from which military forces would withdraw and provision of military and civil forces to assist in maintaining law and order (Kashmir): civil police (including temporary use of military personnel under civilian control) to maintain law and order in the demilitarized zones, and cooperation between the police forces of the two sides (Indonesia); (3) Roads and waterways to be open for the movement of refugees and all other nonmilitary personnel (Kashmir): restoration of conditions for normal transportation, communications, and trade (Indonesia); (4) Release of prisoners of war and political prisoners, and the return of abducted women (Kashmir): mutual release of prisoners without regard to the numbers held (Indonesia); (5) Measures to be taken for guaranteeing humari and political rights, including the repeal of emergency legislation (Kashmir): general political amnesty, guarantees of free expression of opinion and other basic rights, and prohibition of intimidation and reprisals (Indoxesia). A cease-fire was thus a necessary element in a truce: it could be a prelude to a truce (as envisaged for Kashmir) or the two stages could be conflated (as in Indonesia). But what, in the practice of the Security Council, has been the differpendices 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 one can base an answer are the armistice agreements between Israel and its four Arab neighbors in 1949 '1 and the armistice agreement between the Unified Command in Korea, as one party, and North Korea and China, as the other, in 1953."' The truce in Inddnesia in 1948 and the proposed truces in Kashmir in 1948 and 1949 arose from initiatives of subsidiary organs of the Security Council (the Good Offices Committee in the Indonesian case and the UN Commission for India and Pakistan in Kashmir), whereas the five armistice agreements resulted from direct negotiations between the parties. In the practice of the Security Council an armistice is distinguished from a cease-fire or truce by the fact that it is an agreement negotiated directly between the belligerents. A third party may assist the two sides to agree on terms 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; an armistice has never been imposed by the Security Council. An armistice "defines a situation which the various parties brought about by their own agreement . . ." (Rosenne ), 7 2 and is "a consensual contract reached by absence of agreement to the mutual agreement . . ." (Dedijer) . 73 In the 74 contrary, an armistice is of unlimited duration. Second, armistice agreements have concerned only military matters. It was widely assumed in the Middle East in 1949, although possibly not by all the Arabs, and it was explicitly laid down in the Korean armistice in 1953, that political negotiations were to follow; and all five armistice agreements were expressly declared to be dictated only by military considerations.7- Responsibility for political negotiations in the Middle East had been laid on the UN Palestine Conciliation Commission, which had been established by the General Assembly on December 11, 1948,7 one of the functions of which was to promote "a peaceful adjustment of the future situation of Palestine." 77 In the Korean case, negotiations on substantive issues were to be dealt with at "a political conference of a higher
level.. .. " 78

Third, all five armistice agreements provided for the creation of armistice commissions, composed of an equal number of representatives of the two
704 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 the Korean armistice agreement (supra note 71). 77G.A. res. 186 (S-2). 76G.A. res. 194 (Ill). 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 settle complaints of violations.79 One cannot assert unconditionally that none of these elements would have 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, however, is that just as truces have usually been more complex than simple cease-fires, so the five armistice agreements were more elaborate than any of the Security Council truces, no doubt because they were thought of as more long term in nature. Several writers, with the Middle East armistice agreements primarily in mind, see an armistice as implying a positive commitment to or formal acceptance of an eventual peaceful settlement (Mohn), a step towards the 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 there is no dissent from the conclusion that an armistice is not peace and does not end the legal state of war. 4 There has, of course, been significant experience since the Second World War outside the auspices of the Security Council, particularly the three Geneva agreements on Indo-China in 1954 and the Paris accords on Vietnam in 1973. But the practice of -the Security Council has coincided with the advice of the so-called Little Assembly (Interim Committee) in July 1949-that the Security Council issues the first appeal or, acting under Chapter VII, makes an order for the cessation of fighting; that subsidiary organs of the Security Council initiate truce arrangements; and that the parties themselves negotiate the armistice. 5 This was the tenor of Ralph Bunche's report to -theSecurity Council on July 21, 1949 regarding the four armistice agreements on the Middle East. The mandatory truce of July 15, 1948, was of indefinite duration and included a permanent injunction against resort to force, but it seemed to Bunche unnecessary to impose on the parties all of the "burdensome restrictions" of the second truce. The truce was now obsolete and had been superseded by effective armistice agreements voluntarily negotiated by the parties. The Security Council might now reaffirm its order to desist from military action and call on the parties to continue an unconditional cease-fire. 8 Bunches reference to the binding truce of July 15, 1948, as being no longer necessary was changed on 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 IsraelJordan 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,
83

supra note 50, at 130.

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, supra note 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, INTEnNATIONAL

LAW 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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Security Council stated that the four armistice agreements superseded both the first and recommended truce of May 29 and the second and binding truce of July 15. But to be on the safe side, the Security Council once more affirmed, "pending the final peace settlement," the order to observe an unconditional cease-fire which had been part of the now superseded mandatory resolution of July 15, "bearing in mind that the several Armistice Agreements 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, UN

Doe. S/1367; id Supp. (Aug. 1949) 8, UN Doc. S/1362.