Â
ðóññíàóêó
AL-AHMAD AMAD HASSAN
INTERNATIONAL AND EUROPEAN LAW
UDC / 341.1
Law
enforcement practice of the Security Council in maintaining peace
and security in the Middle East
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ïðàêòèêà Ñîâåòà Áåçîïàñíîñòè ÎÎÍ â
ïîääåðæàíèè ìèðà è
áåçîïàñíîñòè íà Áëèæíåì Âîñòîêå
The
United Nations, the General Assembly and Security Council are the international
bodies, where the issue of Middle East peace process posed and discussed
repeatedly. [1] By United Nations (UN)
measures to maintain peace and security, expressed in three forms - the
adoption of the Security Council and UN General Assembly resolutions on the
underlying Middle East settlement - direction in the conflict zone UN Emergency Force to
maintain international peace and security - and the conclusion of UN -
sponsored truce agreements or the disengagement of belligerents to cease-fire
line.
A
very important legal and political guarantees ensuring the effectiveness of the
United Nations in the core area of its activities - preservation of lasting
peace on earth - was the creation of an international ad hoc body, the Security
Council, bearing, according to the United Nations Charter, the «primary
responsibility» for the maintenance of international peace and security, and
endowed with broad powers to prevent acts of aggression and breaches of the
peace and ensuring peace and security people. [2]
Maintaining
peace means ensuring the presence of UN forces in a particular region, which is
authorized by the Security Council with the consent of the host government, as
usual - and with the consent of other parties involved. The composition of
these operations can include both military and police personnel and a civilian.
Transactions may take the form of military observer missions, peacekeeping
forces, or a combination of both.[3]
The United Nations itself, carrying out peace operations, is usually
limited to stating that the «UN forces act on the basis of the principles and
spirit of international humanitarian norms».[4]
It must be emphasized that the legal framework, structure and activities
of these forces were similar to the UNEF-I, located in Egypt in 1956. But the
main feature of UNEF-II is that these forces have been established on the basis
of the provisions of the UN Charter and UN Security Council acting under its
authority.
According to their legal situation, the Security Council - permanent
governing political body established through an agreement between states, body
acting under the Charter of the United Nations, on behalf of all members of the
organization to maintain international peace and security.[5]
Following the cessation of hostilities between the Arab states, on the
one hand and Israel on the other hand, the prospect of peace talks on Middle
East settlement based on UN Security Council Resolution number 242 and 338, a
place which was determined by the Geneva peace conference.
December 15, 1973 the UN Security Council adopted Resolution ¹ 344. The
Security Council expressed the hope that the Geneva peace conference soon make
progress towards a peaceful settlement to the conflict in the Middle East.In
the course of the conference was to develop approaches to the creation of an
international mechanism within the UN to achieve a just solution to the Middle
East conflict.
However, failure to comply with the provisions of UN Security Council
Resolution number 242 (1967), the unresolved aspects of indigenous Middle East conflict,
including the Palestinian question, Israel's continued occupation of Arab
territories occupied during the June war in 1967 - all these factors have led
to renewed armed conflict in the Middle East in October 1973.
Another armed conflict in the
Middle East due to the fact that the lack of long-term significant progress
towards achieving a comprehensive Middle East settlement on the basis of just
and lasting peace makes it clear for a long reluctance of the parties, parties to the conflict to make peace on the terms
proposed UN Security Council Resolution number 242 of 22 November 1967,
provides for Israeli withdrawal from Arab territories, respect the right of
every state in the region live in peace within secure and recognized borders.
Due to the volatile situation
in the Middle East, UN Security Council majority (14 countries -
"for" China abstained) adopted Resolution ¹ 338 of October 22, 1973. [6] In this resolution, the Council urged the parties to
the conflict to immediately cease fire and to all military action not later
than within 12 hours from the time of adoption of this decision, in the troops
to their positions. However,
the UN Security Council Resolution ¹ 338 proposed fought parties to proceed
immediately to implement the previously adopted by the UN Security Council
Resolution number 242 of 22 November 1967 in its entirety, since the resolution
number 242 was aimed at establishing a just and lasting peace in the Middle
East after the 1967 war
According
to the main points of the resolution number 338, the Security Council failed to
link the solution of a cease-fire with the problem of elimination of the common
causes of conflict in the Middle East, as the main cause of conflict is the
occupation of Arab territories earlier in June 1967, respectively, these
territories should be returned. In
fact, the resolution number 242 of the Security Council was the starting point
of the formula "land for peace." However, the resolution ¹ 242 and ¹
338 subsequently formed the basis of peace talks on the Middle East.
The direction of
the Middle East UN troops to monitor the disengagement of troops on the
Egyptian - and the Syrian-Israeli front has played a positive role in defusing
the explosive situation, arisen as a result of hostilities in the Suez Canal
and the Golan Heights in October 1973. By providing a complete cease-fire and
cessation of hostilities by monitoring compliance with agreements on disengagement,
which were concluded between Egypt, Syria, On the one hand, and Israel - on the
other, UN forces thus contribute to creating the conditions necessary for the
adoption of appropriate measures to eliminate the consequences of Israeli
aggression and the establishment of a just and lasting peace in the Middle East
on the basis of and pursuant to decisions adopted by the UN.[7]
Conducting
UN peacekeeping operations means ensuring that the UN presence in a particular
region, which is sanctioned by the Security Council with the consent of the
host country, as usual - and with the consent of other parties involved. The
composition of these operations can include both military and police personnel
and a civilian. Transactions may take the form of military observer missions,
peacekeeping forces, or a combination of both.[8]
Thus,
the normal functioning of the body such as the Geneva conference, no doubt,
would allow for targeted interventions in order to establish a lasting and just
peace in the Middle East. [9] In other words, the UN stressed the importance of relevant UN
resolutions aimed at peaceful settlement of the conflict in its Charter to make
further progress towards establishing peace and security in the region. With
this purpose, the efforts of the UN agreement was reached as with the Arab
states and Israel to resume negotiations between them for the final settlement
of the conflict in the Middle East based on UN Security Council resolution 242
(1967), and 338 (1973).
25
October 1973, the Security Council again passed a resolution ¹ 340. [10] In its resolution the Council decided «to establish immediately under
its authority, UNEF, consisting of personnel provided by Member States of the United Nations
except the permanent members of the Security Council, and invite the
Secretary-General to report within 24 hours on the steps taken
for this purpose».[11]
Operations
of UN peacekeeping activities, undertaken with the consent of the parties
concerned, are essentially temporary preventive measures, provided for under
Art. 40 of the Constitution allows the creation of UN Emergency Force in the
Middle East (UN Security Council Resolution ¹ 340, adopted unanimously,
except for China). As you know, àarticle 40 of the
Charter, defining the nature and the political content of the interim measures,
states that such interim measures "shall not prejudice the rights, claims
or position of the interested parties».[12]
The
original formula and the fundamental importance of resolution ¹ 340 was the one
where they say, that these armed forces, the Security Council «decides ... to
establish under its authority». This formulation, first met in the texts of the
UN, a recognition of virtually all members of the Security Council (in regard
to this particular operation) is absolutely correct and consistent with the
Charter principle of exclusive responsibility of the Council for the conduct of
any peace-keeping operations.[13]
UN
Secretary-General asked to immediately forward to the region by UN
representatives to supervise the cease-fire.[14]
On
the basis of the resolution (340), UN Secretary-General to urgently reported to
the Council, which was approved by the Board and served as a basis for further
steps to implement the UN resolution in the life.[15]
The
analysis of this report can make additional conclusions about the nature of the
agreement reached by Council members, including the USSR and the USA, the rules
and methods of formation and activities of the armed forces of the United
Nations emergency. Report formulated important principles of surgery
undertaken, including the need to fully trust the Security Council and his
support and full cooperation of stakeholders.[16] UN resolutions relating
to emergency military in the Middle East, have the character of an important
precedent in the practice of Organization. [17]
In
addition to enforcement operations related to the use of armed forces, in
accordance with the Charter, the Security Council for a number of powers
enshrined preventive and peacemaking nature. In particular, under
Article 40 of the Charter, the Security Council may require the parties
concerned to comply provisional measures, which usually include the freezing of
claims, withdrawal of troops, an interim demarcation lines. [18]
The
need for the UN Security Council adopted interim measures due to the fact that
to clarify the situation and determine the degree of intensification of the
conflict requires some time.[19] By their nature,
temporary measures are recommended which confirms most of the commentators of
the UN Charter and as evidenced by the practice of the Security Council. [20]
29
October 1973, the Security Council adopted a new resolution ¹ 341. In this resolution, the Council considered
and approved the main provisions of the report relating to the establishment
and operation of formation of UN forces in the Middle East. The Board
considered the report of the UN Secretary General Kurt Waldheim on the
implementation of Security Council Resolution ¹ 340,
which
would increase the number of UN military observers and the establishment of
emergency in the conflict zone, the UN force to enforce the decisions of the
cease-fire and restore peace in the Middle East. [21]
When
you create a UN Emergency Force in the Middle East, UN Secretary-General
pursuant to resolution ¹ 341, presented a report which was approved by the
Board and which literally reads, that the performance of their functions, these
forces will avoid actions which might prejudice the rights, claims, or position
of the parties concerned.[22]
Before
the emergency UN forces in the Middle East were set for: monitoring the
ceasefire, disengagement of forces and the warring parties to return to
positions held at the time of entry into force of the decision of the Security
Council cease-fire (on October 22, 1973), preventing the resumption of
hostilities. UN Emergency Force were ordered to act separately from the parties
involved and, as appropriate, to create buffer zones.[23]
In
accordance with Resolution ¹ 350 of May 31, 1974, the Security Council
established the UN force to monitor the disengagement of Syrian and Israeli
troops in the Golan Heights (UNDOF).[24] The principles that formed the basis for the organization and
activities of UNDOF, which is largely consistent with the principles adopted by
the Security Council for UNEF-II.
The objectives of
UNDOF to oversee the ceasefire between Israel and Syria, the redeployment of
Syrian and Israeli forces and the establishment of «buffer zone», as provided
in the Agreement on Disengagement between Israeli and Syrian forces of 31 May
1974.[25] The objectives of the UNDOF also includes: stamping
out attempts to introduce into a zone of UNDOF forces and cooperate with the
International Red Cross to transport local residents, control over compliance with the cease-fire,
clearance, and drug-mail. [26]
The
process of disengagement was completed in June 1974. UNDOF was established for
an initial period of 6 months. Subsequently, their mandate has been renewed
repeatedly.[27] Since then, with the
assistance of the parties, forces conducted effective exercise of their
functions. Situation in the Israel-Syria sector has remained quiet. Both
parties cooperate fully with the mission, and for years no serious incidents
have been.
The presence of UN
forces in areas of direct contact between the warring parties in the Middle
East conflict helped to prevent major new clashes and the subsequent agreement
on a separation of Egyptian, Syrian and Israeli forces. [28]
Practice
has proved the UN Charter as provided for in any approach to peacekeeping and
security with the use of military personnel on behalf of the UN decision and
under the guidance of the Security Council. Already in the early stages of
their functions of UNEF have played a positive role in the decisions of the
Security Council relating to the cessation of hostilities and the disengagement
of the warring parties. [29]
UN Secretary General Boutros-Ghali, B. in the report "An Agenda for
Peace" (January 1) stressed that the problems of preventing and resolving
conflicts and maintaining peace requires coordinating the efforts of individual
states and non-governmental organizations, as well as the entire UN system. [30]
Peaceful settlement of the Middle East conflict should be resolved
through the use of peaceful means under the UN Charter (articles. 33-38) and in
accordance with the rules and principles of international law.
After a difficult diplomatic struggle, the UN Security Council adopted
November 22, 1967 at the suggestion of British resolution number 242,[31] who wore a compromise. The
resolution contained a statement of the need to output «of Israeli forces from
territories occupied during the armed conflict in June 1967». In its preamble emphasizes "the inadmissibility of the acquisition
of territory by war" and the need to achieve a just and lasting peace in
the Middle East, in which every State in the area can live in peace and
security. The main points were as follows: 1) the withdrawal of Israeli forces c
territories occupied in the recent conflict, 2) Termination of all claims and
the state of war between the Arab countries and Israel, the right of every
State in the area and their right to live in peace with secure and recognized
boundaries free from threats or acts of force; 3) ensuring freedom of
navigation through international waterways in the area, 4) achieving a just
settlement of the refugee problem, and 5) the territorial integrity and
political independence of every State in the area, through measures including
the establishment of demilitarized zones. [32]
Simultaneously with the adoption of resolution number 242, the Security
Council authorized the UN Secretary-General to send to the Middle East, his
special representative, whose task was to help settle the conflict on the basis
of Resolution 242. [33]
As is known, in accordance with paragraph 3 of
resolution number 242 UN Secretary General U. Thant appointed a special envoy -
the Swedish Ambassador Gunnar Jarring in Moscow for "establishing and
maintaining contact with interested States in order to facilitate agreement and
to support efforts aimed at achieving a peaceful and acceptable
solution in accordance with the provisions and principles of the present
resolution. " Appointed to this position, Mr. Jarring held talks with the
governments of Arab countries and Israel. [34]
Analyzing the provisions of UN Security Council
Resolution number 242, subparagraph I, paragraph 1, the norm requires Israel to
withdraw its troops from the territories occupied by June 5, 1967 on the
borders that existed on June 4, 1967, that is, the return of those territories
and to fulfill its obligations in accordance with the UN Charter and
international law.
It is important to note that the UN Security Council
in the preamble to resolution ¹ 242 (1967 G.) has assumed all territorial
acquisition is declared incompatible with contemporary international law, since
the acquisition of foreign territory by war - a clear violation of fundamental
norms and principles of international law.
Former UN Secretary General Boutros Boutros-Ghali
concluded that the UN Security Council Resolution number 242 of November 22,
1967 concerning the settlement of the conflict in the Middle East, should be
binding.[35]
It must be emphasized that the Security Council stands
out among the other principal organs of the UN not only the nature of decisions
made on the basis of the UN Charter, granted him power, but also the scale of
the functions and powers.
The American Lawyer G. Kelsen
wrote on this occasion that «the competence of the Security Council coincides
largely with the competence of the entire United Nations system».[36]
L. N. Anisimov on the subject says that from the
standpoint of international law, Security Council resolution is required to
meet international legal instrument UN body which, in accordance with its
Charter, the primary responsibility for maintaining peace and security. [37]
Transactions of UN peacekeeping in the Middle East
suggests that the use of UN forces to ensure the cessation of hostilities and
disengagement of belligerents may enhance the effectiveness of the UN as a tool
to restore and maintain international peace and security. [38]
Thus, the UN forces have been established as an
international mechanism to ensure peace and security in a particular area, for
which the use of force had been made. The most important element in
enhancing the role of the UN Security Council in maintaining peace and security
is strict adherence to all parties in the Middle East conflict, the UN Charter,
resolutions of UN bodies.
[1] Dmitriev, E., B. Ladeykin path to peace in the Middle East. - Moscow: International Relations, 1974. ð. 150.
[2] Fedorov V.N. UN Security Council. Publisher "International Relations". M.: 1965, p. 7.
[3] See more details. Yasnosokirsky Ó. A. Peacekeeping: some conceptual aspects of the political settlement of conflicts and crisis situations // Moscow Journal of International Law. - 1. - ¹ 3. - 47.
[4] Journal of the Red Cross. 1996. ¹ 10. ð. 429.
[5] Ôåäîðîâ Â. Í. Ñîâåò Áåçîïàñíîñòè ÎÎÍ. Èçä-âî «Ìåæäóíàðîäíûå îòíîøåíèÿ». Ì.: 1965 ã. Ñ. 40.
[6] Resolution 338 (1973 G.) on October 22, 1973 .- The resolutions and decisions of the Security Council in 1973. Security Council. Official Records. Twenty-eighth year. New York City., The United Nations, 1974, p. 10.
[7] UN as an instrument to maintain and promote peace: International legal issues // Avakov M. M., Israelyan V. L., Movchan A. P. M. International Relations, 1980. C. 116.
[8] Chernichenko S. V. The theory of international law. In 2 vols. Volume 1: Modern theoretical problems. - Moscow: 1999. ð. 293-297.
[9] Doronin NI International Conflict: On the bourgeois theories of conflict. Critical analysis of research methodology. Moscow: International Relations, 1981. ð. 117.
[10] UN Security Council Resolution ¹ 340 of October 25, 1973.
[11] Aréchaga Eduardo Jimenez de. Modern international law. Translated from Spanish. Progress, 1983. ð. 204.
[12] Shkunaev V. G. the United Nations in the contemporary world. M. 1976. ð. 191
[13] Ibid. ð. 207-208.
[14] Losev S. A., Tyssovsky U. L. Middle East crisis: Oil and politics. M. 1980. ð. 148.
[15] Äîêóìåíò ÎÎÍ S/11052/Rev.1 îò 27 îêòÿáðÿ 1973 ã.
[16] Shkunaev V. G. ð. 208.
[17] Shkunaev V. G. ð. 209.
[18] Contemporary international legal aspects of reforming the UN Security Council. Diss ... on the degree of candidate of legal sciences. Andreev, M. V. 2001, p. 102.
[19] These temporary measures may include the recommendation of the Security Council to cease hostilities, to establish a truce and withdraw troops to the demilitarized zone between the warring parties.
[20] Universal and regional human rights system and the interests of the state / PV Pins, G. N. Hadieva, A. B. Mezyaev, A. M. Nasyrova / Edited by Professor G. I. Kurdyukova. - Kazan: 2002. ð. 35.
[21] Report of the Secretary-General on the implementation of UN resolution number 340 (1973), the Council Security Council (S/11052 document dated October 26, 1973).
[22] UN Document S / 11 052 / Rev. 1 of October 27, 1973
[23] Anisimov L. N. International legal means of settling international disputes / conflicts. Leningrad - 1975. ð. 142.
[24] Report of the Secretary-General concerning the Agreement on Disengagement between Israeli and Syrian Forces. ð. 880–882. UN Security Council Resolution ¹ 350 of May 31, 1974
[25] Fedorov V. N. United Nations and the problems of war and peace. M., 1988. p. 217.
[26]The most important feature of modern operations of UN peacekeeping is their multifunctional character.
[27] The United Nations. Quick Reference Guide. M.: "International Relations", 1985. ð. 18.
[28] Anisimov L. N. ð. 144.
[29] Kalinkin G. F. Îperations of UN peacekeeping. "The Soviet State and Law", 1974, ¹ 7, p. 92-94.
[30] Boutros-Ghali B. An Agenda for Peace. Preventive diplomacy, peacemaking and peacekeeping. N. Y. 1992.
[31] UN Security Council Resolution number 242 of 22 November 1967 - The Palestinian problem. UN documents and international organizations and conferences. M. 1984. ð. 157-158.
[32] USSR and the Middle East settlement, 1967-1988: Documents and Materials. Ministry of Foreign Affairs of the USSR, [Editor U. M. Vorontsov. M. 1989. ð 449-450.
[33] The history of international relations and Soviet foreign policy, 1917-1987: The 3 tons M. Int. relations, 1986. Volume 2: 1945-1970 / [Antyuhina Moskovchenko-VI, Akhtamzyan AA Akhtamzyan IA, and others] ed. GV Fokeev. – 1987. Ñ. 370.
[34] Gunnar Jarring - Special Representative of UN Secretary-General, whose mission was to facilitate on-site implementation of the Security Council resolution number 242 (1967).
[35] Boutros Boutros-Ghali. Ten questions to resolve the conflict in the Middle East // Journal of International Politics. April - 1971. S. 7-9.
[36] Kelsen H. The Law of United Nations. A critical analysis of its fundamental Problems. L.: 1951. Ð. 279.
[37] Anisimov L. N. 1975. ð. 59.
[38] UN as an instrument to maintain and promote peace: International legal issues // Avakov M. M., Israelyan V. L., Movchan A. P. International Relations, 1980. C. 120.