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The UN Mideast Ceasefire Resolution: A View from Israel

JURIST Guest Columnist Dr. Robbie Sabel of the Hebrew University Faculty of Law in Jerusalem, Israel, offers his thoughts on UN Security Council Resolution 1701, calling for an immediate cessation of hostilities in the Middle East conflict involving Israel, Hezbollah and Lebanon...


Borrowing from Professor D'Amato’s initiative I would like to comment on UNSC Resolution 1701 using his approach of leaving the text in italics and my comments in regular font. I limit my comments only to those paragraphs where I take a perspective that differs from Prof. D’Amato’s views.

The Security Council,

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


Referring to previous resolutions does not usually mean that they are superseded. The normal usage is to quote previous resolutions as building blocks on the way to the resolution that follows.

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


The Hezbollah launched an unprovoked attacked against Israeli patrols in Israel territory, they killed a number of soldiers and kidnapped two of them. This attack was accompanied by a Hizbollah barrage of rockets against both military and civilian targets in Israel. By any reasonable standard this is an armed attack against Israel. The UN Security Council recognizes it as such.

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

The call for release of Israeli soldiers is unconditional. It is not an operative paragraph of the resolution but the preamble to a resolution is used to express the background and motives behind a resolution. It is relevant to add that, in gross violation of humanitarian law and human rights law, no information has been provided about the health of the kidnapped soldiers nor has the Red Cross been allowed to visit them or communicate with them.

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

Israel does not claim that the Chebaa farms area is Israel territory it is therefore unnecessary to write “territory can no longer be obtained by military conquest, and hence it does not legally belong to Israel.” The UN determination to date has been that it is Syrian territory.

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

This wording is taken from Chapter VII of the Charter but in “binding” resolutions the phrase is usually combined with language referring explicitly to Chapter VII of the Charter or to specific Articles in that chapter of the Charter. The absence of such a reference and the stress on the agreement of the Lebanese and Israeli Governments would tend to point that the resolution is regarded as taken in accordance with Chapter VI hence requiring the agreement of Israel and Lebanon.

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

By its language this paragraph implicitly allows Israel to take defensive measures. No such allowance is made for Hezbollah since it was the aggressor.

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

The stipulation that the cease-fire did not come immediately into effect is to sanction Israel’s continuous military action until the cease fire is in force. An aggressor should take into account that it cannot always determine at will when the defending state must cease its military activities.

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

This paragraph is important for the future as it emphasizes that it is the territorial state, Lebanon, that is responsible for attacks from its territory.

OP8. Calls for Israel and Lebanon to support a permanent ceasefire and a long-term solution based on the following principles and elements:

- security arrangements to prevent the resumption of hostilities, including the establishment between the Blue Line and the Litani river of an area free of any armed personnel, assets and weapons other than those of the government of Lebanon and of UNIFIL as authorized in paragraph 11, deployed in this area,
- no foreign forces in Lebanon without the consent of its government,
- no sales or supply of arms and related materiel to Lebanon except as authorized by its government,


Perhaps the heart of the matter. The Security Council has outlawed the continued presence of armed Hezbollah in Southern Lebanon. The resolution makes no reference to the continued existence of Hizbollah as a political-religious movement. It has further forbidden Iran and Syria, though not mentioned by name, from arming and training Hezbollah.

P18. Stresses the importance of, and the need to achieve, a comprehensive, just and lasting peace in the Middle East, based on all its relevant resolutions including its resolutions 242 (1967) of 22 November 1967 and 338 (1973) of 22 October 1973;

This paragraph, inserted, apparently, at Israel’s request, would point to the fact that future negotiations with Syria, including the question of the Shebaa farms, should be dealt with in the context of peace negotiations.

General comment

It is too early to know whether the UNSC resolution will be implemented on the ground. If Lebanon will implement the resolution it will not be because of any inherent awe of the UN. It will be because the State of Israel, which Hezbollah attacked from Lebanese territory, responded in force. Hezbollah dragged Lebanon into a military conflict with no possible military or political gain for Lebanon. Both Israeli and Lebanese civilians have been killed, Lebanese infrastructures have been badly hit and Israel has suffered some four thousand, Iranian and Syrian made rocket attacks.

A prominent Israeli “dove” commented recently that he remains a dove but is aware that if a dove doesn’t protect itself it can end up on somebody’s dinner plate.


Dr. Robbie Sabel teaches international law at the Hebrew University Faculty of Law in Jerusalem, Israel and has served for many years as a Legal Advisor to the Israeli Foreign Ministry.

August 14, 2006


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Comments:

There seems to be a common confusion between [i]enforcement action[/i] taken under Chapter VII and whether a Security Council resolution is binding or not. The ICJ has maintained that: "[i]t has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to "the decisions of the Security Council" adopted in accordance with the Charter"" (see Namibia, 1971).

In addition to this, the reference to article 39 makes Chapter VII applicable; the language is an almost mirror image of the text used in that article. The lack of an explicit reference to Chapter VII does not change this; even so, there's no explicit reference to Chapter VI either (see S/RES/1495 for one that has).

August 14, 2006  


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