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36. It has been said that the decision to withdraw U.N.E.F. precipitated other consequences such as the reinstitution of the blockade against Israel in the Straits of Tiran. As can be seen from the chronology, the U.N.E.F. positions at Sharm el-Sheikh on the Straits of Tiran (manned by 32 men in all) were in fact rendered ineffective by United Arab Republic troops before the request for withdrawal was received. It is also pertinent to note that, in response to a query from the Secretary General as to why the United Arab Republic had announced its reinstitution of the blockade in the Straits of Tiran while the Secretary General was actually en route to Cairo on 22 May, President Nasser explained that his Government's decision to resume the blockade had been taken some time before U Thant's departure and it was considered preferable to make the announcement before rather than after the Secretary General's visit to Cairo.
The Question of Consultations
37. It has been said also that there was not adequate consultation with the organs of the United Nations concerned or with the members before the decision was taken to withdraw the force. The Secretary General was, and is, firmly of the opinion that the decision for withdrawal of the force, on the request of the host Government, rested with the Secretary General after consultation with the Advisory Committee on U.N.E.F., which is the organ established by the General Assembly for consultation regarding such matters. This was made clear by Secretary General Hammarskjold, who took the following position on 26 February 1957 in reply to a question about the withdrawal of the force from Sharm el-Sheikh:
'An indicated procedure would be for the Secretary General to inform the Advisory Committee on the United Nations Emergency Force, which would determine whether the matter should be brought to the attention of the Assembly.' (Official Records of the General Assembly, Eleventh Session, annexes, agenda item 66, document A-3563, annex I, B, 2.)
The Secretary General consulted the Advisory Committee before replying to the letter of 18 May 1967 from the United Arab Republic requesting withdrawal. This consultation took place within a few hours after receipt of the United Arab Republic request, and the Advisory Committee was thus quickly informed of the decision which the Secretary General had in mind to convey in his reply to the Foreign Minister of the United Arab Republic. As indicated in the report to the Security Council of 26 May 1967:
'The Committee did not move, as it was its right to do under the terms of paragraph 9 of General Assembly resolution 1001 (ES-I to request the convening of the General Assembly on the situation which had arisen.' (S- 7906, Para. 4.)
38. Before consulting the Advisory Committee on U.N.E.F., the Secretary General had also consulted the permanent representatives of the seven countries providing the contingents of U.N.E.F., and informed them of his intentions. This, in fact, was more than was formally required of the Secretary General in the way of consultation.
39. Obviously, many Governments were concerned about the presence and functioning of U.N.E.F. and about the general situation in the area, but it would have been physically impossible to consult all of the interested representatives within any reasonable time. This was an emergency situation requiring urgent action. Moreover, it was perfectly clear that such consultations were sure to produce sharply divided counsel, even if they were limited to the permanent members of the Security Council. Such sharply divided advice would have complicated and exacerbated the situation, and, far from relieving the Secretary General of the responsibility for the decision to be taken, would have made the decision much more difficult to take.
40. It has been said that the final decision on the withdrawal of U.N.E.F. should have been taken only after consideration by the General Assembly. This position is not only incorrect but also unrealistic. In resolution 1000 (ES-I) the General Assembly established a United Nations command for an emergency international force. On the basis of that resolution the force was quickly recruited and its forward elements flown to the staging area at Naples. Thus, though established, it had to await the permission of the Government of Egypt to enter Egyptian territory. That permission was subsequently given by the Government of Egypt as a result of direct discussions between Secretary General Hammarskjold and President Nasser of Egypt. There is no official United Nations document on the basis of which any case could be made that there was any limitation on the authority of the Government of Egypt to rescind that consent at its pleasure, or which would indicate that the United Arab Republic had in any way surrendered its right to ask for and obtain at any time the removal of U.N.E.F. from its territory. This point is elaborated later in this report (see paras. 71-80 below).
41. As a practical matter, there would be little point in any case in taking such an issue to the General Assembly unless there would be reasonable certainty that that body could be expected expeditiously to reach a substantive decision. In the prevailing circumstances, the question could have been validly raised as to what decision other than the withdrawal of U.N.E.F. could have been reached by the Assembly once United Arab Republic consent for the continued presence of U.N.E.F. was withdrawn.
42. As regards the practical possibility of the Assembly considering the request for U.N.E.F.'s withdrawal, it is relevant to observe that the next regular session of the General Assembly was some four months off at the time the withdrawal request was made. The special session of the General Assembly which was meeting at the time could have considered the question, according to rule 19 of the Assembly's rules of procedure, only if two-thirds or 82 members voted for the inclusion of the item in the agenda. It is questionable, to say the least, whether the necessary support could have been mustered for such a controversial item. There could have been no emergency special session since the issue was not then before the Security Council, and therefore the condition of lack of unanimity did not exist.
43. As far as consultation with or action by the Security Council was concerned, the Secretary General reported to the Council on the situation leading up to and created by the withdrawal of U.N.E.F. on 19 May 1967 (S-7896). In that report he characterized the situation in the Near East as 'extremely menacing.' The Council met for the first time after this report on 24 May 1967, but took no action.
44. As has already been stated, the Advisory Committee did not make any move to bring the matter before the General Assembly, and no representative of any Member Government requested a meeting of either the Security Council or the General Assembly immediately following the Secretary General's reports (A-6730 and S-7896). In this situation, the Secretary General himself did not believe that any useful purpose would be served by his seeking a meeting of either organ, nor did he consider that there was basis for him to do so at that time. Furthermore, the information available to the Secretary General did not lead him to believe that either the General Assembly or the Security Council would have decided that U.N.E.F. should remain on United Arab Republic territory, by force if necessary, despite the request of the Government of the United Arab Republic that it should leave.
Practical Factors influencing the Decision
45. Since it is still contended in some quarters that the U.N.E.F. operation should somehow have continued after the consent of the Government of the United Arab Republic to its presence was withdrawn, it is necessary to consider the factors, quite apart from constitutional and legal considerations, which would have made such a course of action entirely impracticable.
46. The consent and active cooperation of the host country is essential to the effective operation and indeed, to the very existence, of any United Nations peacekeeping operation of the nature of U.N.E.F. The fact is that U.N.E.F. had been deployed on Egyptian and Egyptian-controlled territory for over 101/2 years with the consent and cooperation of the Government of the United Arab Republic. Although it was envisaged in pursuance of General Assembly Resolution 1125 (XI) of 2 February 1957 that the force would be stationed on both sides of the line, Israel exercised its sovereign rights to refuse the stationing of U.N.E.F. on its side, and the force throughout its existence was stationed on the United Arab Republic side of the line only.
47. In these circumstances, the true basis for U.N.E.F.'s effectiveness as a buffer and deterrent to infiltration was, throughout its existence, a voluntary undertaking by local United Arab Republic authorities with U.N.E.F. that United Arab Republic troops would respect a defined buffer zone along the entire length of the line in which only U.N.E.F would operate and from which United Arab Republic troops would be excluded. This undertaking was honoured although U.N.E.F. had no authority to challenge the right of United Arab Republic troops to be present anywhere on their own territory.
48. It may be pointed out in passing that over the years U.N.E.F. dealt with numerous infiltrators coming from the Israel as well as from the United Arab Republic side of the line. It would hardly be logical to take the position that because U.N.E.F. has successfully maintained quiet along the line for more than 10 years, owing in large measure to the cooperation of the United Arab Republic authorities, that this Government should then be told that it could not unilaterally seek the removal of the force and thus in effect be penalized for the long cooperation with the international community it had extended in the interest of peace.
49. There are other practical factors relating to the above-mentioned arrangement which are highly relevant to the withdrawal of U.N.E.F, First, once the United Arab Republic troops moved up to the line to place themselves in direct confrontation with the military forces of Israel, U.N.E.F. had, in fact, no further useful function. Secondly, if the force was no longer welcome, it could not as a practical matter remain in the United Arab Republic, since the friction which would almost inevitably have arisen with that Government, its armed forces and with the local population would have made the situation of the force both humiliating and untenable. It would even have been impossible to supply it. U.N.E.F. clearly had no mandate to try to stop United Arab Republic troops from moving freely about on their own territory. This was a peace-keeping force, not an enforcement action. Its effectiveness was based entirely on voluntary cooperation.
50. Quite apart from its position in the United Arab Republic, the request of that Government for U.N.E.F.'s withdrawal automatically set off a disintegration of the force, since two of the Governments providing contingents quickly let the Secretary General know that their contingents would be withdrawn, and there can be little doubt that other such notifications would not have been slow in coming if friction had been generated through an unwillingness to comply with the request for withdrawal.
51. For all the foregoing reasons, the operation, and even the continued existence of U.N.E.F. on United Arab Republic territory, after the withdrawal of United Arab Republic consent, would have been impossible, and any attempt to maintain the force there would without question have had disastrous consequences.
Legal and Constitutional Considerations and the Question of Consent for the Stationing of U.N.E.F. on United Arab Republic Territory
52. Legal and constitutional considerations were, of course, of great importance in determining the Secretary General's actions in relation to the request of the Government of the United Arab Republic for the withdrawal of U.N.E.F. Here again, a chronology of the relevant actions in 1956 and 1957 may be helpful.
53. 4 November 1956. The General Assembly, at its first emergency special session, in Resolution 998 (ES-I) requested 'the Secretary General to submit to it within 48 hours a plan for the setting up, with the consent of the nations concerned, of an emergency international United Nations Force to secure and supervise the cessation of hostilities...'
54. 5 November 1956. The General Assembly, in its Resolution 1000 (ES-I), established a United Nations Command for an emergency international force, and, inter alia, invited the Secretary General 'to take such administrative measures as may be necessary for the prompt execution of the actions envisaged in the present resolution.'
55. 7 November 1956. The General Assembly, by its Resolution 1001 (ES-I), inter alia, approved the guiding principles for the organization and functioning of the emergency international United Nations Force and authorized the Secretary General 'to take all other necessary administrative and executive action'.
56. 10 November 1956. Arrival of advance elements of U.N.E.F. at staging area in Naples.
57. 8-12 November 1956. Negotiations between Secretary General Hammarskjold and the Government of Egypt on entry of U.N.E.F. into Egypt.
58. 12 November 1956. Agreement on U.N.E.F. entry into Egypt announced and then postponed, pending clarification, until 14 November.
59. 15 November 1956. Arrival of advance elements of U.N.E.F. in Abu Suweir, Egypt.
60. 16 November to 18 November 1956. Negotiations between Secretary General Hammarskjold and President Nasser in Cairo on the presence and functioning of U.N.E.F. in Egypt and cooperation with Egyptian authorities, and conclusion of an 'aide-mémoire on the basis for the presence and functioning of U.N.E.F. in Egypt' (the so-called 'good faith accord'). (Ibid., Document A-3375, annex.)
61. 24 January 1957. The Secretary General in a report to the General Assembly (ibid., Document A-3512) suggested that the force should have units stationed on both sides of the armistice demarcation line and that certain measures should be taken in relation to Sharm el-Sheikh. On 2 February 1947, the General Assembly, by its Resolution 1125 (XI), noted with appreciation the Secretary General's report and considered that 'after full withdrawal of Israel from the Sharm el-Sheikh and Gaza areas, the scrupulous maintenance of the armistice agreement required the placing of the United Nations Emergency Force on the Egyptian-Israel armistice demarcation line and the implementation of other measures as proposed in the Secretary General's report, with due regard to the considerations set out therein with a view to assist in achieving situations conducive to the maintenance of peaceful conditions in the area.'
62. 7 March 1957. Arrival of U.N.E.F. in Gaza.
63. 8 March 1957. Arrival of U.N.E.F. elements at Sharrn el-Sheikh.
64. In general terms the consent of the host country to the presence of peacekeeping machinery is a basic prerequisite of all the United Nations peace-keeping operations. The question has been raised whether the United Arab Republic had the right to request unilaterally the withdrawal 'as soon as possible' of U.N.E.F. from its territory or whether there were limitations on its rights in this respect. An examination of the records of the first emergency special session and the eleventh session of the General Assembly is relevant to this question.
65. It is clear that the General Assembly and the Secretary General from the very beginning recognized, and in fact emphasized, the need for Egyptian consent in order that U.N.E.F. be stationed or operate on Egyptian territory. Thus, the initial Resolution 998 (ES-I) of 4 November 1956 requested the Secretary General to submit a plan for the setting up of an emergency force, 'with the consent of the nations concerned'. The 'nations concerned' obviously included Egypt (now the United Arab Republic), the three countries (France, Israel and the United Kingdom) whose armies were on Egyptian soil and the states contributing contingents to the force.
66. The Secretary General, in his report to the General Assembly of 6 November 1956, stated, inter alia:
'9. Functioning, as it would, on the basis of a decision reached under the terms of the Resolution 337 (V) "Uniting for Peace", the force, if established, would be limited in its operations to the extent that consent of the parties concerned is required under generally recognized international law. While the General Assembly is enabled to establish the force with the consent of those parties which contribute units to the force, it could not request the force to be stationed or operate on the territory of a given country without the consent of the Government of that country.' (Ibid., First Emergency Special Session, Annexes, agenda item 5, Document A/3302, para. 9.)
67. He noted that the foregoing did not exclude the possibility that the Security Council could use such a force within the wider margins provided under Chapter VII of the United Nations Charter. He pointed out, however, that it would not be necessary to elaborate this point further, since no use of the force under Chapter VII, with the rights in relation to member states that this would entail, had been envisaged.
68. The General Assembly in its Resolution 1001 (ES-I) of 7 November 1956 expressed its approval of the guiding principles for the organization and functioning of the emergency international United Nations Force as expounded in paragraphs 6 to 9 of the Secretary General's report. This included the principle of consent embodied in paragraph 9.
69. The need for Egypt's consent was also stated as a condition or 'understanding' by some of the-states offering to contribute contingents to the force.
70. It was thus a basic legal principle arising from the nature of the force, and clearly understood by all concerned, that the consent of Egypt was a prerequisite to the stationing of U.N.E.F. on Egyptian territory, and it was a practical necessity as well in acquiring contingents for the force.
The 'Good Faith' Aide-Mémoire of 20 November 1956
71. There remains to be examined whether any commitments were made by Egypt which would limit its pre-existing right to withdraw its consent at any time that it chose to do so. The only basis for asserting such limitation could be the so-called 'good faith' aide-mémoire which was set out as an annex to a report of the Secretary General submitted to the General Assembly on 20 November 1956.
72. The Secretary General himself did not offer any interpretation of the 'good faith' aide-mémoire to the General Assembly or make any statement questioning the remarks made by the Foreign Minister of Egypt in the General Assembly the following week (see paragraph 74 below). It would appear, however, that in an exchange of cables lie had sought to obtain the express acknowledgement from Egypt that its consent to the presence of the force would not be withdrawn before the force had completed its task. Egypt did not accept this interpretation but held to the view that if its consent was no longer maintained the force should be withdrawn. Subsequent discussions between Mr. Hammarskjold and President Nasser resulted in the 'good faith' aide-mémoire.
73. An interpretative account of these negotiations made by Mr. Hammarskjold in a personal and private paper entitled 'aide-mémoire,' dated 5 August 1957, some eight and a half months after the discussions, has recently been made public by a private person who has a copy. It is understood that Mr. Hammarskjold often prepared private notes concerning significant events under the heading 'aide-mémoire.' This memorandum is not in any official record of the United Nations nor is it in any of the official files. The General Assembly, the Advisory Committee on U.N.E.F. and the Government of Egypt were not informed of its contents or existence. It is not an official paper and has no standing beyond being a purely private memorandum of unknown purpose or value, in which Secretary General Hammarskjold seems to record his own impressions and interpretations of his discussions with President Nasser. This paper, therefore, cannot affect in any way the basis for the presence of U.N.E.F. on the soil of the United Arab Republic as set out in the official documents, much less supersede those documents.
Position of Egypt
74. It seems clear that Egypt did not understand the 'good faith' aide-mémoire to involve any limitation on its right to withdraw its consent to the continued stationing and operation of U.N.E.F. on its territory. The Foreign Minister of Egypt, speaking in the General Assembly on 27 November 1956, one week after the publication of the 'good faith' aide-mémoire and three days following its approval by the General Assembly, said:
'We still believe that the General Assembly Resolution of 7 November 1956 still stands, together with its endorsement of the principle that the General Assembl y could not request the United Nations Emergency Force to be stationed or to operate on the territory of a given country without the consent of the Government of the country. This is the proper basis on which we believe, together with the overwhelming majority of this Assembly, that the United Nations Emergency Force could be stationed or could operate in Egypt. It is the only basis on which Egypt has given its consent in this respect.' (Official Records of the General Assembly, Eleventh Session, Plenary Meetings, 597th meeting, para. 48.)
He then added:
'... as must be abundantly clear, this force has gone to Egypt to help Egypt, with Egypt's consent; and no one here or elsewhere can reasonably or fairly say that a fire brigade, after putting out a fire, would be entitled or expected to claim the right of deciding not to leave the house.' (Ibid., para. 50.)
Analysis of the 'Task' of the Force
75. In the 'good faith' aide-mémoire, the Government of Egypt declared that, 'when exercising its sovereign rights on any matters concerning the presence and functioning of U.N.E.F., it will be guided, in good faith, by its acceptance of General Assembly Resolution 1000 (ES-I) of 5 November 1956.'
76. The United Nations in turn declared 'that the activities of U.N.E.F. will be guided, in good faith, by the task established for the force in the aforementioned Resolutions (100 (ES-I) and 997 (ES-I)); in particular, the United Nations, understanding this to correspond to the wishes of the Government of Egypt, reaffirms its willingness to maintain U.N.E.F. until its task is completed.'
77. It must be noted that, while Egypt undertook to be guided in good faith by its acceptance of General Assembly Resolution 1000 (ES-L), the United Nations also undertook to be guided in good faith by the task established for the force in Resolution 1000 (ES-I) and 997 (ES-I). Resolution 1000 (ES-I), to which the declaration of Egypt referred, established a United Nations Command for the force 'to secure and supervise the cessation of hostilities in accordance with all the terms' of Resolution 997 (ES-I). It must be recalled that at this time Israel forces had penetrated deeply into Egyptian territory and that forces of France and the United Kingdom were conducting military operations on Egyptian territory. Resolution 997 (ES-I) urged as a matter of priority that all parties agree to an immediate cease-fire, and halt the movement of military forces and arms into the area. It also urged the parties to the armistice agreements promptly to withdraw all forces behind the armistice lines, to desist from raids across the armistice lines, and to observe scrupulously the provisions of the armistice agreements. It further urged that, upon the cease-fire being effective, steps be taken to reopen the Suez Canal and restore secure freedom of navigation.
78. While the terms of Resolution 997 (ES-I) cover a considerable area, the emphasis in Resolution 1000 (ES-I) is on securing and supervising the cessation of hostilities. Moreover, on 6 November 1956 the Secretary General, in his second and final report on the plan for an emergency international United Nations Force, noted that 'the Assembly intends that the force should be of a temporary nature, the length of its assignment being determined by the needs arising out of the present conflict.' (Ibid., First Emergency Special Session, Annexes, agenda item 5, Document A-3302, para. 8.) Noting further the terms of Resolution 997 (ES-I), he added that 'the functions of the United Nations Force would be, when a cease-fire is being established, to enter Egyptian territory with the consent of the Egyptian Government, in order to help maintain quiet during and after the withdrawal of non-Egyptian troops, and to secure compliance with the other terms established in the Resolution of 2 November 1956' (997 (ES-I)). (Ibid., para. 12.)
79. In a cable delivered to Foreign Minister Fawzi on 9 or 10 November 1956, in reply to a request for clarification as to how long it was contemplated that the force should stay in the demarcation line area, the Secretary General stated: 'A definite reply is at present impossible but the emergency character of the force links it to the immediate crises envisaged in Resolution 2 November (997 (ES-I)) and its liquidation.' This point was confirmed in a further exchange of cables between the Secretary General and Dr. Fawzi on 14 November 1956.
80. The Foreign Minister of Egypt (Dr. Fawzi) gave his understanding of the task of the force in a statement to the General Assembly on 27 November 1956:
'Our clear understanding - and I am sure it is the clear understanding of the Assembly - is that this force is in Egypt only in relation to the present attack against Egypt by the United Kingdom, France and Israel, and for the purposes directly connected with the incursion of the invading forces into Egyptian territory. The United Nations Emergency Force is in Egypt, not as an occupation force, not as a replacement for the invaders, not to clear the Canal of obstructions, not to resolve any question or settle any problem, be it in relation to the Suez Canal, to Palestine or to any other matter; it is not there to infringe upon Egyptian sovereignty in any fashion or to any extent, but, on the contrary, to give expression to the determination of the United Nations to put an end to the aggression committed against Egypt and to the presence of the invading forces in Egyptian territory. ' (Ibid., Eleventh Session, Plenary Meetings, 597th meeting, para. 49.)