Assaker Thomas 10603670
University of Amsterdam, 23 June 2014
Using Force and Upholding Consent in UN Peace Operations: a Focus on
UNIFIL
Master Thesis for the LLM Public International Law 2013-2014 Under the Supervision of Professor TD Gill
Table of Content:
Using of Force and Upholding Consent in UN Peace Operations: a Focus on UNIFIL ... 1
1. Introduction ... 3
2. United Nations Peacekeeping ... 4
2.1. Definition and Legal Basis ... 4
2.2. Evolving Role ... 6
2.3. Basic Principles ... 7
2.4. Command and Control of UN Peace Operations ... 8
3. UNIFIL’s Background ... 9
3.1. Situation in Lebanon and Legal Basis for the Deployment of UNIFIL-I ... 9
3.2. War of 2006, Enhancement and New Mandate of UNIFIL-II ... 10
3.3. Command and Control of UNIFIL-II ... 12
4. The Attitudes and Consent of the Parties ... 12
4.1. The Lebanese Government ... 13
a) Political situation in Lebanon ... 13
b) Attitude towards Resolution 1701 and UNIFIL ... 14
4.2. Armed Groups ... 17
a) Lebanon’s history of armed groups ... 17
b) Armed groups’ attitudes towards Resolution 1701 and UNIFIL ... 20
4.3. Israel ... 22
4.4. Syria ... 25
4.5. Attacks against UNIFIL and Interference with its Mandate ... 26
4.6. Conclusion of this Chapter ... 27
5. The recourse to force by peacekeepers ... 29
5.1. Self-Defence ... 29
5.2. Protection of the Mandate ... 31
5.3. Use of Force by UNIFIL-II ... 31
a) Self-defence ... 32
b) Protection of the mandate ... 32
c) Reasons for such reluctance to use force ... 33
6. The Relationship between Consent and Use of Force in UN Peace Operations ... 34
6.1. Whose Consent? Not Using Force as a Means to Maintain Consent ... 34
6.2. Protection of Civilians: Not Using Force Results in a ‘Lack of Consent’ ... 36
7. Conclusion ... 37
8. Bibliography ... 40
Literature Referred to in this Thesis: ... 40
Articles, Books and NGO Reports ... 40
United Nations Documents ... 42
Cases ... 43
Press Articles ... 43
1. INTRODUCTION
The most common criticism made of United Nations-led peace operations is their lack of ability to resort to coercive action when necessary, in particular to protect civilians. The United Nations Interim Force in Lebanon (UNIFIL), first deployed in southern Lebanon in 1978, is no exception to this criticism. In an attempt to overcome this difficulty, after the war of the summer of 2006, the United Nations Security Council enhanced the mandate and granted more resources and means to the Force. Even though it is recognized that UNIFIL plays an important role for the stability of the region, the issues relating to its ability and will to resort to force in situations where it might be required to, are far from solved. This has an impact on the credibility and legitimacy of the mission in the eyes of the local population. The expression of their dissatisfaction goes from sarcastic comments being made about Blue Helmets being there to ‘count the number of foreign tanks invading Lebanon’ to civilians actually blocking and attacking UNIFIL vehicles.
‘UNIFIL-II’ can be seen as the first massive participation in peacekeeping by European countries after the traumatising experiences in Somalia, Rwanda and the former Yugoslavia in the 1990s.1 It is therefore crucial to understand whether or not we have learned lessons from the failures
in past peace operations and, in a broader perspective, to what extent this tool provided by the collective security system is appropriate for - and capable of - providing durable peace in the Middle East and in other parts of the world that are struck by conflict.
The ability and will by peacekeepers to resort to coercive action is one of the key issues in that respect. Limited use of force in UN peacekeeping is intrinsically related to another aspect of this type of mission: the consent of the parties. This paper will attempt to set out the legal parameters relating to the use of force in a consensual UN peace operation, and will give special attention to the UNIFIL mission. After explaining the doctrine of UN peacekeeping (2) and analysing the historical and legal background behind the particular peace operation that is UNIFIL (3), my main research will focus on decrypting the attitudes of the several political actors of the Cedar country towards the UN mission (4), and confronting these with the right to use force by the Blue Helmets in southern Lebanon, using concrete examples from the field (5). UNIFIL will serve as the illustration of a problem that is not specific to it, as I will try to understand the complicated relationship that exists between consent and use of force in UN peace operations in general (6), before I conclude (7).
1 A Mattelaer ‘Europe Rediscovers Peacekeeping? Political and Military Logics in the 2006 UNIFIL Enhancement’
(Academia Press for Egmont Royal Institute for International Relations 2009) 34 Egmont Paper 7; R Murphy ‘Peacekeeping in Lebanon and Civilian Protection’ (Oxford University Press 2012) Journal of Conflict & Security
Because at present, one cannot speak of an on-going armed conflict in Lebanon, I will not address the issue of the application of international humanitarian law (IHL) in the present contribution. The essential point is that when a peacekeeping force becomes party to an armed conflict, it is bound by IHL.2
Another aspect that I will not deal with here is the naval component of UNIFIL: the Maritime Task Force (MTF). Deployed since October 2006 to support the Lebanese Navy in monitoring and securing its territorial waters and coastline, especially with regard to weapons smuggling,3 it has played an important role in preventing a deterioration of the security situation.4 However, most of the incidents that are relevant for this research happen on dry land.
2. UNITED NATIONS PEACEKEEPING 2.1. Definition and Legal Basis
Peacekeeping can be defined as ‘a particular kind of military operation conducted under the auspices of the United Nations’.5 This broad definition serves the idea that the exact role and content of peacekeeping operations have evolved, as we will see.
The concept of United Nations peacekeeping is not explicitly provided for in the Charter of the United Nations. Peacekeeping is a tool that has developed in practice over the years, and is different from enforcement action taken under Chapter VII of the Charter. The reason for such parallel development is the inability of the collective security system to achieve the agreements provided for by article 43 of the Charter, whereby Member States would contribute armed forces to the UN. Since Chapter VII could not be implemented as was intended by the framers of the Charter, alternatives have been sought, such as delegating enforcement powers to Member States, and the establishment of peacekeeping operations.6
Even though the United Nation Security Council’s practice is never to refer explicitly to Chapter VI of the Charter, peace operations have traditionally been considered to have their legal
2 Secretary-General’s Bulletin ‘Observance by United Nations forces of international humanitarian law’ (6 August
1999) UN Doc ST/SGB/1999/13.
3 ‘UNIFIL Maritime Task Force’ <http://unifil.unmissions.org> (19 June 2014).
4 Reports of the Secretary-General on the implementation of Security Council Resolution 1701 (2006) UN Docs
(hereafter ‘UNSG Reports’): S/2007/641 para 22; S/2008/135 paras 30-31; S/2008/715 paras 27; S/2009/119 paras 27-28; S/2009/330 paras 30-31; S/2009/566 paras 32-33; S/2010/105 paras 27-29; S/2010/352 paras 25-26; S/2010/565 paras 29,30; S/2011/715 paras 22-23; S/2012/124 paras 29-30; S/2012/502 paras 25-27; S/2012/837 paras 28-30; S/2013/120 paras 26-27; S/2013/381 paras 24-25; S/2013/650 paras 35-36.
5 A Orford ‘Peacekeeping’ in P Cane and J Conaghan (eds) The new Oxford Companion to Law (Oxford University
Press 2008) 879.
basis therein.7 However, the Security Council has sometimes invoked Chapter VII when authorizing
such operations,8 so that it is wiser not to associate them with a particular chapter of the Charter, but
rather to assess the nature of each individual operation by looking at the mandate, the tasks of the force, and its rules of engagement (ROE).9 Dag Hammarskjöld, the UN Secretary-General from 1953 to 1961, expressed this hybrid nature by referring to peacekeeping operations as ‘Chapter VI and a half’ measures.10
Peacekeeping therefore draws its legal basis from the general powers of the Security Council (UNSC), the General Assembly (UNGA) and the Secretary-General (UNSG). The UNSC has primary responsibility for the maintenance of international peace and security (article 24(1) UN Charter), as well as the ability to create subsidiary organs for the performance of its functions (article 29), which in turn are mentioned in several provisions of the Charter, including Chapters VI and VII. The General Assembly has the power to discuss and make recommendations on matters within the scope of the Charter (art 10 and 11), including in the field of international peace and security. It can also establish subsidiary organs, under article 22. Both the UNSC and the UNGA can entrust functions to the Secretary-General (article 98).11 Peacekeeping operations can therefore
be considered UN subsidiary organs.12
Today, only the UNSC undertakes to authorize such missions. During the Cold War however, the Council was paralyzed by the vetoing power of its permanent members, and the General Assembly stepped in to authorize certain operations.13 This led to strong controversy, as some States refused to pay their contributions to missions authorized by circumventing the Council, and argued their unconstitutionality: if it is admitted that the UNGA has secondary responsibility in the maintenance of international peace and security, it must nevertheless refer such issues to the Security Council when it decides to deal with them, according to article 11.14 This debate was resolved by the International Court of Justice (ICJ) in the 1962 Certain Expenses advisory opinion15 and is not at issue anymore today, since the Council has since then been relatively active. As Nigel White summarized it: ‘Politically, the peacekeeping function of the UN is now firmly in the control
7 TD Gill ‘Peace Operations’ in TD Gill and D Fleck (eds) The Handbook of the Law of International Military
Operations (Oxford University Press 2010) 138 fn 13.
8 eg UNSC Resolution 871 (4 October 1993) UN Doc S/RES/871, expanding the mandate of UNPROFOR, was adopted
under chapter VII. See KE Cox ‘Beyond Self-Defence: United Nations Peacekeeping Operations and the Use of Force’ (1999) 27(2) Denver Journal of International Law & Policy 263.
9 UN DPKO ‘United Nations Peacekeeping Operations: Principles and Guidelines’ (2008) (hereafter ‘Capstone
Doctrine’) <www.effectivepeacekeeping.org > (19 June 2014) 13-14.
10 MN Shaw (n 6) 1224-1225. 11 ibid 1224-1225.
12 ibid 1231.
13 UNGA Res 377 (V) (3 November 1950) ‘Uniting for Peace’. 14 MN Shaw (n 6) 1272.
of the Security Council, though a great deal of delegation of the organisational and logistical side is given to the Secretary General; legally, the General Assembly possesses the power as well’.16
2.2. Evolving Role
Traditionally, the core business of UN Peacekeeping was to act as a buffer between conflicting parties after a ceasefire.17 For example, the first UN Peace force, which was already deployed in the Middle East during the Suez crisis, was the United Nations Emergency Force (UNEF-I).18 It operated from 1956 to 1967, under the mandate to secure and supervise the cessation of hostilities, including the withdrawal of the armed forces of France, Israel and the United Kingdom from Egyptian territory and, after that withdrawal, to serve as a buffer between the Egyptian and Israeli forces.19
Since the end of the Cold War, the context in which peacekeepers are deployed is somewhat different. The majority of conflicts are internal: they take place within weak States, incapable of exercising the fundamental attributes of sovereignty such as providing basic protection to their citizens.20 The role of peacekeeping missions has consequently evolved and developed, so that
today they are often referred to as ‘peace operations’,21 or ‘multi dimensional peacekeeping
operations’,22 rather than ‘peacekeeping operations’ in the sense that they are not only deployed to
‘keep the peace’ (to the extent there is actually a peace to keep) but most often to engage in a variety of activities to prepare the ground for restoring some calm in the situation, on the way to building peace again. Such activities can include the promotion of a stable environment, the maintenance of public order, the provision of humanitarian assistance in cooperation with other relevant actors, the protection of civilians against violations of humanitarian law and human rights law, etc.23
16 ND White Keeping the Peace: the United Nations and the Maintenance of International Peace and Security
(Manchester University Press 1993) Melland Schill Studies in International Law 200.
17 TD Gill (n 7) 136.
18 The missions deployed before that particular one were ‘observer missions’, not yet ‘forces’. See ND White
(n 16) 185.
19 See UNGA Resolutions 997 to 1002 (ES-I) (1956). 20 ‘Capstone Doctrine’ (n 9) 21-22.
21 ‘Report of the Panel on United Nations Peace Operations’ UN Doc A/55/505-S/200/809 (hereafter ‘Brahimi Report’). 22 ‘Capstone Doctrine’ (n 9) 22.
2.3. Basic Principles
Despite the aforementioned evolution in the role and practice of UN peacekeeping, three core principles continue to be the fundamental pillars of peace operations, distinguishing them from enforcement action under Chapter VII: 24 consent of the parties, impartiality, and non-use of force except in self-defence and defence of the mandate. I will now have a look at each of these principles, and come back to two of them in the next chapters, in their application to the case of UNIFIL.
The first basic principle is the consent of the parties: peace operations require the consent of the hosting State,25 and are also strongly influenced by the consent of all the parties to the conflict, required in order to be able to carry out their mandate.26 The peacekeepers must work to maintain this consent throughout the existence of the operation. It may be withdrawn, as was for example done by Egyptian President Nasser in 1967, when he changed his mind about the presence of UNEF-I on his territory. Secretary-General U Thant was forced to end the operation, which made place for the Six Days War, all the while challenging the effectiveness of peacekeeping.27 Without
the consent of all parties to the conflict, a peace operation will either have to cease or turn into an enforcement operation.28 Another question is that of the validity of the given consent, for example when the host State is not actually exercising sovereignty and is replaced by non-State actors. I will come back to this issue, with regard to the different actors playing a role in southern Lebanon.
The second principle, that of impartiality, is linked to the first one, in that it is indispensible for a force trying to maintain the consent of each party, that it be perceived by these parties as impartial. This is not to be confused with neutrality or passivity: a peace operation should react to behaviour that further threatens the peace, but should always be able to justify its action to the relevant actors.29 According to Lakhdar Brahimi, impartiality refers to the adherence to the principles of the UN Charter and the objectives of the mandate, but does not require neutrality when facing violations of these principles and objectives.30
Thirdly, force should only be used in self-defence or defence of the mandate. As peace operations are often deployed in areas of great tension and in which armed groups operate, the
24 TD Gill (n 7) 137. 25 MN Shaw (n 6) 1227. 26 TD Gill (n 7)136.
27 See SS Malawer ‘The Withdrawal of UNEF and a New Notion of Consent’ in Studies in International Law (2nd edn
William S Hein & co Buffalo 1977), arguing that the withdrawal of consent was illegal; contra ND White (n 16) 186 and 230-233.
28 ‘Capstone Doctrine’ (n 9) 32. 29 ibid 33.
consent of the hosting State may not always suffice to guarantee their safety. They may have to use force to protect themselves, and to protect the accomplishment of their mandate. In such cases, the UNSC authorises a ‘robust peacekeeping mission’, which can contribute to blurring the distinction between peace and enforcement operations. The ROE will further elaborate the parameters of such use of force. Political implications of recourse to force are to be taken into account, here again in order to maintain the consent of the parties to the conflict.31
2.4. Command and Control of UN Peace Operations
The political control behind UN peace operations is detained by the Security Council, which indicates the general objectives of the mission in a resolution. The command and control of the mission is delegated to the Secretary-General, and is effectively executed by the Department of Peacekeeping Operations (DPKO), in New York. An Under Secretary-General for peacekeeping operation, at present French diplomat Mr. Hervé Ladsous, heads the DPKO. Effective command on the field will be in the hands of the Head of Mission (HOM), generally the Special Representative of the Secretary-General (SRSG) and of the Force Commander (FC), which is the head of the military component. National contingents are theoretically at the bottom of the UN chain of command. 32 However, in practice, the troop-contributing countries (TCCs) tend to keep a rather
large degree of autonomy, most likely because they do not have faith in the UN chain of command.33 The UN has tried to tackle this lack of confidence and efficacy. It adopted the United Nations Standby Arrangements System (UNSAS) in 1994 to improve the availability and readiness of national contingents.34 It also worked to improve the coordination and interaction between the strategic, operational and tactical levels.35 Today, UN Peace Operations are still influenced by national caveats and respective military traditions, but there has been improvement in the command structure at UN level.
31 ‘Capstone Doctrine’ (n 9) 34-35.
32 TD Gill (n 7) 159-162; T Findlay The Use of Force in UN Peace Operations (Oxford University Press 2002) 9-11. 33 T Findlay ibid 12-13; R Hatto ‘UN Command and Control Capabilities: Lessons from UNIFIL’s Strategic Military
Cell (2009) 16(2) International Peacekeeping 187-188.
34 D Fleck ‘The Law Applicable to Peace Operations’ in A Clapham and P Gaeta (eds) The Oxford Handbook of
International Law in Armed Conflict (Oxford University Press 2014) 230-232.
3. UNIFIL’S BACKGROUND
3.1. Situation in Lebanon and Legal Basis for the Deployment of UNIFIL-I
Israel first invaded Lebanon in 1978, at a time where the country was already being torn apart by a confessional civil war. The Security Council reacted in its Resolution 425 by establishing, at the request of the Lebanese government, the United Nations Interim Force in Lebanon.36 UNIFIL’s original mandate was to confirm withdrawal of Israeli forces, restore international peace and security, and assist the Lebanese government in reasserting its authority in the South.37 The Secretary-General interpreted this mandate by modelling UNIFIL on other peacekeeping missions present at the time in the Middle East (UNEF-II and UNDOF), and it was clear that no enforcement action was contemplated.38
UNIFIL’s mandate was problematic from the start: it was the fruit of a fragile diplomatic consensus in the Security Council and was adopted urgently. Fundamental issues, such as the freedom of movement in a defined area operation, or action to be taken if the parties did not comply with the mandate, were intentionally not dealt with.39
Even though Israel withdrew by the end of 1978, the Interim Force was rapidly tested, when the Israel Defence Forces (IDF) re-invaded the northern neighbour in 1982, with the aim of definitively dealing with the Palestinian Liberation Organization (PLO). The Blue Helmets showed some resistance, but in accordance with their mandate and the doctrine of UN peacekeeping, and in view of their light equipment and capacity, they did not engage in an attempt to forcibly stop the IDF.40 In the following years of Israeli occupation, UNIFIL’s role was limited to providing some protection and humanitarian aid to the local population, as well as denouncing Israeli violations of IHL against civilians.41 The peacekeepers had their hands tied, trapped between a vague, soft mandate and the events on the ground. Such paralysis fed contempt against them on the part of the local population and armed groups, who accused them of collaborating with Israel.42
UNIFIL’s mandate was renewed every six month ever since its creation, with some adaptations.43 This was still the case after the civil war ceased in 1990, since the Lebanese
36 ND White (n 16) 246-247.
37 UNSC Resolution 425 (19 March 1978) UN Doc S/RES/425 para 3. 38 ND White (n 16) 246. 39 R Murphy (n 1) 6-9. 40 T Findlay (n 32) 114-115. 41 R Murphy (n 1) 9-10. 42 ibid 12. 43 ND White (n 16) 247.
Government was never really able to ascertain its full sovereignty over the country, in particular in the South.
Israel finally withdrew in May 2000, maintaining its occupation only over the Sheb’a farms area,44 a portion of land that is still disputed today. This unilateral and unexpected retreat permitted south Lebanese residents to regain their homes that had been occupied for the past twenty years. Hezbollah took advantage of this withdrawal to fill the vacuum45 and progressively develop as a quasi-State within the State, showing that it was the only actor capable of providing basic services to the population and defending it against Israeli occupation, especially after the war of 2006.46
3.2. War of 2006, Enhancement and New Mandate of UNIFIL-II
On 12 July 2006, Hezbollah fighters crossed south of the Blue Line, kidnapped two Israeli soldiers,47 killed three others, and launched rocket fire on Haifa. Israel responded by intense bombing of the South of Lebanon. This launched the war of the summer of 2006: during the following 33 days, about 1,200 Lebanese and 170 Israelis were killed, and in total one and a half million people from both sides were displaced, internally or abroad.48
This attempt by Israel to eradicate Hezbollah ‘once and for all’ was supported by the US, which at the time was engaged in its ‘global war on terror’. However, despite a large scale bombing of the south of Lebanon, Israel was unable to annihilate the Shiite armed group. The result was a late international intervention, in response to a massive humanitarian crisis and a breakdown of international peace and security in the region,49 which ended only when an agreement could be found to enhance UNIFIL. The US and Israel first sought an enforcement operation under Chapter VII, but the Lebanese Government proposed an enhancement of the UN mission in place, all the while refusing any non-UN-led operation. Israel would accept such an offer if it consisted of at least 15,000 troops,50 which would enable it to withdraw without ceding terrain to its opponent, but rather to a reinforced international force accompanied by the Lebanese Armed Forces (LAF).51
44 C Hoppe ‘Who Was Calling Whose Shots? – Hezbollah and Lebanon in the 2006 Armed Conflict with Israel’ in The
Italian Yearbook of International Law (Martinus Nijhoff Publishers Leiden 2006) vol 16, 22.
45 WK Mooney Jr ‘Stabilizing Lebanon: Peacekeeping or Nation-Building’ (Autumn 2007) Parameters 29-30. 46 A Mattelaer (n 1) 9; WK Mooney Jr ibid 32 ff.
47 Ehud Golwasser and Eldad Regev’s bodies were later returned to Israel. How they died is uncertain, as Israel claims
that they were severely wounded at the time of capture and were not treated subsequently, while Hezbollah claims that they perished under IDF bombing.
48 UNSG Report S/2006/670 (18 August 2006) paras 42 and 46. 49 WK Mooney Jr (n 45) 28; R Murphy (n 1) 4.
50 A Mattelaer (n 1) 10. 51 WK Mooney Jr (n 45) 29.
Resolution 1701 thus called for a cessation of hostilities,52 and expanded the size of UNIFIL, to
a maximum of 15,000 troops. The new mandate reiterates the first three tasks of UNIFIL as set out by Resolution 425, and adds that the force shall: monitor the cessation of hostilities; accompany and support the LAF as they deploy throughout the South and Israel withdraws; coordinate its activities with the two governments concerned; help ensure humanitarian access to civilians and the voluntary and safe return of displaced persons; assist the LAF in the establishment of an area free of illegal arms between the Blue Line and the Litani river; assist the Lebanese Government, at its request, in securing its borders and other entry points for illegal arms.53 Finally, the Security Council authorizes UNIFIL to
take all necessary action in areas of deployment of its forces and as it deems within its
capabilities, to ensure that its area of operations is not utilized for hostile activities of any kind, to resist attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council, and to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of United Nations personnel, humanitarian workers and, without prejudice to the responsibility of the Government of Lebanon, to protect civilians under imminent threat of physical violence (emphasis added).54
Alexander Mattelaer describes this mandate as three-dimensional: UNIFIL-II constitutes a military buffer, a mechanism for de-escalation and a reconstruction enabler.55
Despite the determination of the situation as being a threat to international peace and security (which is more of a ‘Chapter VII language’) on the one hand, and certain aspects of the mandate that make it ‘robust’ (in particular the authorization to ‘take all necessary action’) on the other, it was clear from the outset that UNIFIL-II is not an enforcement mission taken under Chapter VII of the Charter.56
As of 27 May 2014, 10,247 peacekeepers from 37 countries were deployed. Its main contributors are Indonesia, Italy, France, India, Nepal, Ghana and Malaysia.57 Its military capacity includes ‘armored and mechanized units, artillery, and even air defence’.58
52 UNSC Resolution 1701 (11 August 2006) UN Doc S/RES/1701 para 1. 53 ibid para 11.
54 ibid para 12.
55 A Mattelaer (n 1) 19-22. 56 ibid 10; R Murphy (n 1) 30.
57 ‘UNIFIL Troop-Contributing Countries’ <http://unifil.unmissions.org> (22 June 2014). 58 WK Mooney Jr (n 45) 30.
3.3.Command and Control of UNIFIL-II
During the 2006 enhancement, the participation of European countries was subject to the condition that an additional layer of command be put in place, different than the regular DPKO command structure, in which these States could appoint their own officers. This led to strong debate between France and the UN Secretariat, which did not want to lose the command of the operation, and the compromise was to set up a Strategic Military Cell (SMC), which would provide military guidance to UNIFIL at the strategic level, and report to the Under Secretary-General for Peacekeeping Operations.59
The SMC’s existence was brief: it was terminated in June 2010, and its tasks were transferred to the Office of Military Affairs within DPKO.60 Indeed, it was perceived by non-Western states as an expression of double standards in favour of European troop-contributing countries. There seemed to be no justification for such a special treatment of the mission in Lebanon, in which many NATO States were involved, and not for other dangerous operations elsewhere in the world.61 UNIFIL is thus back to a regular UN chain of command. Its Force Commander and Head of Mission is Italian Major-General Paolo Serra. The Special Coordinator of the Secretary-General is Derek Plumbly (UK), and his deputy is Robert Watkins (Canada).62
4. THE ATTITUDES AND CONSENT OF THE PARTIES
In this type of ‘second generation’ peacekeeping, it has become increasingly difficult to gain and maintain the consent of all the parties.63 I will now address the issue of consent in a broad sense by looking over the attitudes of the relevant actors in the Lebanese situation, in general but also more specifically towards UNIFIL-II since it was set up in 2006. I will successively deal with the Lebanese Government (4.1), Lebanon’s armed groups (4.2), Israel (4.3) and finally Syria, which despite not having been a party to the conflict that led to the enhancement of the Force, plays a non-negligible role in the crisis (4.4). The following sections do not claim to constitute an exhaustive research on any of these actors, but merely to provide some background and tools to understand the complexity of the situation and their relationship with UNIFIL. I will end this chapter by a separate
59 R Murphy (n 1) 22-23.
60 A Mattelaer (n 1) 11-12; R Murphy (n 1) 20-25; R Hatto (n 33) 189 ff. 61 R Hatto ibid 191-192.
62 ‘Special and Personal Respresentatives, Envoys and Advisors of the Secretary-General’
<http://www.un.org/sg/srsg/middleeast.shtml> (20 June 2014).
section mentioning the most serious attacks against UNIFIL and the main interferences with its mandate, as these are not attributable with certainty to any of the envisaged actors (4.5), before concluding (4.6).
4.1. The Lebanese Government
The Lebanese Government appears to be the most cooperative actor with respect to UNIFIL. It was at its request that UNIFIL was first created in 1978,64 and at its initiative that it was enhanced in 2006.65 But despite these good gestures, no permanent solution has been found to the crisis. I will now try to understand how the attitude of the Government relates to these disappointing results, first by giving an overview of the political situation in Lebanon (a), then by focusing on the relationship between the State and UNIFIL (b).
a) Political situation in Lebanon
Since the assassination of Rafiq Hariri in 2005 and the resulting withdrawal of Syrian troops from the Cedar country, the major political alliances in government are determined by their attitude towards the Syrian neighbour. The March 8 Alliance66 is pro-Syrian, while the March 14 Alliance67
is anti-Syrian. From 2005 to 2009, the Prime Minister was Fouad Siniora of the Sunni Future Movement. After an attempt by his government to dismantle Hezbollah’s communications’ network and remove Beirut Airport’s Chief of Security on ground of ties to that party, another violent crisis erupted. In May 2008, a meeting of the National Dialogue was held in Qatar and resulted in the ‘Doha Agreement’ of 21 May 2008, which provided for the election of Michel Sleiman as President of the Republic and called for security and military authority to be reserved to the State.68 But this did not completely solve the security situation, as Hezbollah ‘continues to maintain substantial military capacity distinct from that of the Lebanese State’.69 Parliamentary elections were held on 7 June 2009, at the outcome of which the March 14 coalition got the majority, and Saad Hariri was
64 UNSC Resolution 425 (19 March 1978) UN Doc S/RES/425 para 3. 65 A Mattelaer (n 1) 10.
66 Most notably composed of Hassan Nasrallah’s Hezbollah (Shiite), General Aoun’s Free Patriotic Movement
(Christian Maronite) and Amal (Shiite).
67 Most notably composed of Saad Hariri’s Future Movement (Sunni), Samir Geagea’s Lebanese Forces (Christian
Maronite), and the Gemayel family’s Phalanges aka ‘Kataeb’ (Christian Maronite).
68 UNSG Report S/2008/715 para 3; ‘Doha Agreement on the outcome of the meeting of the Lebanese National
Dialogue’ UN Doc S/2008/392 paras I and IV.
nominated Prime Minister and tasked with the formation of a government of national unity.70
Unfortunately the political division returned around the cooperation with the Special Tribunal for Lebanon (STL or Hariri Tribunal),71 an international court established by the UNSC to investigate Hariri’s murder,72 and the government collapsed on 12 January 2011. Najib Mikati was designated Prime Minister but was only able to form a cabinet – with March 8 majority – on 13 June 2011.73 On 30 November 2011, he decided that Lebanon would pay its share in the funding of the STL.74 On 19 October 2012, a terrorist attack killed General Hassan, head of the Information Branch of the Internal Security Forces. This event triggered further fighting and division, as the March 14 opposition started boycotting Parliamentary proceedings and National Dialogue sessions.75 This eventually forced Mikati and his cabinet to resign, and in April 2013, Tammam Salam, close to the March 14 Movement, became Prime Minister. There is currently disagreement over a possible new electoral law, and as no solution was found before the Parliamentary elections of June 2013, Parliament voted to extend its mandate until November 2014.76 President’s Sleiman’s mandate also expired on 25 May 2014, and a Presidential election took place in April 2014 but no majority could be found. Since then, successive attempts to elect a president have failed because the required quorum of presence in Parliament could not be reached.77
b) Attitude towards Resolution 1701 and UNIFIL
Inevitably, Lebanon’s political crisis hinders the implementation of Resolution 1701.78 The Lebanese Armed Forces are themselves divided, just like every other part of government, and this renders their work inefficient, or at least insufficient. As Joseph Bahout says, ‘the army effectively acts like a peacekeeping force’.79 I will now have a look at how Lebanon has cooperated with UNIFIL-II in the fulfilment of its mandate since 2006.
70 UNSG Reports S/2009/330 para 3; S/2009/566 para 3; S/2010/105 para 4; F Makhzoumi ‘Lebanon’s Crisis of
Sovereignty’ (April-May 2010) 52(2) Survival 6-8.
71 UNSG Report S/2010/565 para 4; E Dingel ‘Hezbollah’s Rise and Decline? How the Political Structure Seems to
Harness the Power of Lebanon’s Non-State Armed Group’ (2013) 31(2) Vierteljahreszeitschrift für Sicherheit und
Frieden 71.
72 UNSC Resolution 1757 (30 May 2007) UN Doc S/RES/1757. 73 UNSG Report S/2011/406 para 5.
74 UNSG Report S/2012/124 para 4. 75 UNSG Report S/2012/837 paras 10-11.
76 ‘Members of Lebanon’s New Government’ The Daily star (Beirut Lebanon 15 February 2014)
<http://www.dailystar.com. > (9 June 2014); UNSG Report S/2013/381 para 7.
77 ‘Seventh session fails, Berri postpones presidential vote’ The Daily Star (Beirut Lebanon 18 June 2014)
<http://www.dailystar.com> (22 June 2014).
78 UNSG Reports S/2007/641 para 4; S/2008/135 paras 3-5.
79 J Bahout ‘Armed Groups and Sovereignty: Domestical and Regional Agendas for War and Peace in Lebanon’ (2012)
The cessation of hostilities, called for by paragraph 1 of the resolution, was generally respected. The war ended and did not start again, but the tension remains high, and border clashes occur. There are not only instances of weapons pointing, verbal abuse and other aggressive behaviour, on the part of military as well as civilian personnel from both sides,80 but there has also been direct fighting between the LAF and the IDF, once on 3 August 201081 and again on 1 August 2011.82
Regarding respect for the Blue Line, in accordance with paragraphs 4 and 8 of the resolution, full implementation has not been reached either. The most frequent violations are ground incursions by shepherds, farmers, hunters, fishermen, swimmers or construction workers, in particular in the surroundings of the Sheb’a farms, Blida, Ghajar or the Hasbani River. The trespassing civilians sometimes carry a gun, and their intentions are often misinterpreted by the IDF and can lead to arrests or firing. Because the Blue Line is not visibly marked everywhere83 and sometimes cuts through farmers’ fields, it is not always clear on which side of the border the people are and if their presence is a sign of hostile intent or just an honest mistake.84 Other violations occur when civilians protest against Israeli activities.85 In particular on 15 May 2011, thousands of Palestinian refugees demonstrated and part of them attacked the technical fence. The IDF opened fire, killing seven and injuring 111. 70 LAF soldiers (who unsuccessfully tried to interpose themselves), four IDF soldier and one UNIFIL peacekeeper were also injured.86 Less frequent are violations of Lebanese and Israeli civilians smuggling illegal substances (heroin, hashish, weapons…) into Israel.87 In all, this testifies to the inability of the Lebanese State to assert its authority and be respected by its civilians.
The LAF and UNIFIL have developed a strong cooperation, in accordance with paragraph 11 of the resolution, which takes several forms: a combined presence in area of operations, coordinated patrols, co-located checkpoints, counter-rocket launching operations, joint training workshops and exercises as well as strategic review sessions regarding this cooperation.88 The Lebanese Mine
80 UNSG Reports S/2010/565 para 18; S/2011/715 paras 12-13. 81 UNSG Report S/2010/565 paras 2, 8-9.
82 UNSG Report S/2011/715 paras 7-8.
83 Despite the tripartite cooperation between the LAF, UNIFIL and the IDF in order to reach a complete and clear
marking of the Line: UNSG Reports S/2008/715 para 12; S/2009/330 para 17; S/2009/566 para 20; S/2010/105 para 14; S/2010/352 para 14; S/2010/565 para 16; S/2011/406 para 19; S/2011/715 para 30; S/2012/124 para 34; S/2012/502 para 32; S/2012/837 para 36; S/2013/120 para 32; S/2013/381 para 28; S/2013/650 para 41.
84 UNSG Reports S/2007/641 para 13; S/2008/715 para 11; UNSG Report 2009/119 para 16; S/2009/330 para 16;
S/2009/566 paras 17, 19; S/2010/105 para 11; S/2010/352 para 13; S/2010/565 paras 14-15; S/2011/715 para 11; S/2012/124 para 20; S/2012/502 para 12; S/2012/837 para 16; S/2013/120 para 14; S/2013/381 para 15; S/2013/650 paras 17-18.
85 UNSG Reports S/2009/566 para 7; S/2010/352 paras 10-11. 86 UNSG Report S/2011/406 paras 8-9.
87 UNSG Reports S/2008/135 para 9; S/2008/715 para 10; S/2009/119 para 16; S/2009/330 para 15; S/2009/566
para 18; S/2012/837 para 19.
88 UNSG Reports S/2007/641 paras 17-18, 23; S/2008/135 paras 21-23; S/2008/715 paras 16, 18-19; S/2009/119 paras
Action Centre (part of LAF), the UN Mine Action Support Team and UNIFIL have also worked together on the clearance of landmines and cluster bombs.89 This collaboration has led to the
discovery of weapons and explosives that the LAF destroys or confiscates,90 apprehension of unauthorized armed personnel, and rehabilitation of hazardous land, all of which make the population safer.
Another aspect of the Security Council’s 2006 decision (paragraphs 14 and 15) is to set up an
arms embargo. In this respect, the Council of Ministers established a Common Border Force to
manage the northern border and prevent arms smuggling from Syria.91 It was supposed to progressively extend to the eastern border, where LAF and Syrian troops have been posted on each side, legal crossing points have been established92 and the Department of customs, reinforced.93 However, implementation is another endeavour, and in 2008, the Lebanese Independent Border Assessment Team (LIBAT) set up by the Secretary-General reported that there was no improvement in border control.94 The process was affected by the lack of clear demarcation of the border, and the presence of Palestinian military bases along it.95 With the new refugee crisis that the Syrian civil war has brought about, border control got even more out of hand, as weapons and fighters have been able to cross the border in both directions.96
This issue is linked to that of the disarmament of non-State armed groups, probably the most central issue in Lebanese politics. The Security Council had already urged Lebanon to deal with this in Resolutions 1559 (2004) and 1680 (2006), and it recalls this duty in paragraph 3 of Resolution 1701. To address the topic, National Dialogue sessions have been instituted to discuss a national defence strategy. Unfortunately, the outcomes of these sessions, when they are even held, are often at best agreements to continue discussions. Between ‘March 8’ deciding that ‘resistance’ (ie
paras 19-20; S/2011/406 para 20; S/2011/715 para 15; S/2012/24 para 22; S/2012/502 para 16; S/2012/837 para 21; S/2013/120 para 15; S/2013/381 para 18.
89 UNSG Reports S/2008/715 paras 45, 48; S/2009/119 paras 43-44; S/2009/330 para 50; S/2009/566 para 50;
S/2010/105 para 44; S/2010/352 para 42; S/2010/565 para 50; S/2011/406 para 47; S/2011/715 para 46; S/2012/124 para 51; S/2012/502 para 50; S/2012/837 para 51; S/2013/120 para 50; S/2013/381 paras 43-44; S/2013/650 paras 55-56.
90 UNSG Reports S/2007/641 para 19; S/2008/135 para 24; S/2008/715 paras 20-21; S/2009/119 paras 6, 23, 25;
S/2011/406 paras 23-24.
91 UNSG Reports S/2007/641 paras 38-39; S/2008/135 paras 42-46; S/2009/119 paras 38-39; S/2009/330 paras 44-46;
S/2009/566 paras 46-47; S/2010/105 para 41; S/2010/352 paras 39-40; S/2010/565 paras 46-47; S/2011/406 paras 43-44; S/2011/715 paras 41-45.
92 UNSG Reports S/2007/641 para 41; S/2010/105 para 42. 93 UNSG Report S/2008/715 para 40.
94 UNSG Reports S/2007/641 para 42; S/2008/715 paras 36-37.
95 UNSG Reports S/2009/330 para 48; S/2009/566 para 48; S/2010/105 para 40; S/2010/352 para 41; S/2010/565
para 49; S/2011/406 para 46.
96 UNSG Reports S/2012/124 paras 48-50; S/2012/502 paras 45-49; S/2012/837 paras 46-50; S/2013/120 paras 45-49;
Hezbollah’s weapons) is not to up for negotiations,97 or ‘March 14’ boycotting the sessions (since
the assassination of General Hassan on 19 October 2012),98 no solution has been found yet. The two
noteworthy achievements were the Doha Agreement, already mentioned above, and the Baabda Declaration of 11 June 2012, which showed a commitment to calm and security, avoidance of violence and support of the LAF, but still specified that Hezbollah’s arms were to be considered as ‘in defence of Lebanon’.99
Finally, the occasional visits of the UNIFIL headquarters in Naqoura by State officials such as President Sleiman, the Minister of Defence, the LAF Commander and the Prime Minister show support of the Lebanese Government to UNIFIL’s presence and activity.100
4.2. Armed Groups
a) Lebanon’s history of armed groups
As previously mentioned, the consent given to UNIFIL-I’s deployment by the weak Lebanese Government in 1978, did not imply that the de facto forces in the country, especially in the South, would cooperate with this peacekeeping mission.101 Christian militias were fighting (pro-) Palestinian armed groups, who themselves were engaged on multiple fronts: the Lebanese civil war, the wars with Israel, and at some point between each other. The detailed study of these factions and their activities goes beyond the scope of this research.102 To illustrate the varying attitudes of
militias towards UNIFIL in its early years, I will just mention that Amal (“hope”), the Shiite militia, has occasionally shown great cooperation with UNIFIL-I.103 This group lost popular support when it stood by Israel and the Lebanese government set up by the US in 1982,104 but nowadays it takes active part in government. Another armed group, the South Lebanon Army, a Christian militia led by Saad Haddad and later Antoine Lahd, served as Israel’s proxy in the south, and this role included fighting UNIFIL.105
97 UNSG Reports S/2008/715 para 33; S/2009/119 para 33; S/2009/330 para 42; S/2009/566 paras 43-44; S/2010/105
para 36; S/2010/352 paras 32-35; S/2010/565 paras 41-43; S/2011/406 para 40; S/2012/837 para 41; S/2013/120 para 39; S/2013/381 para 32.
98 UNSG Reports S/2012/837 para 41; S/2013/120 para 39. 99 UNSG Report S/2012/502 para 42.
100 UNSG Report 2009/119 para 30; S/2011/715 para 4; S/2012/124 para 57; S/2013/124 para 4. 101 ND White (n 16) 202.
102 R Brynen Sanctuary and Survival: the PLO in Lebanon (Westview Press Boulder 1990). 103 R Murphy (n 1) 12 and 15.
104 C Hoppe (n 44) 21-22. 105 R Murphy (n 1) 9 fn 54.
The Taif Agreement of 1989 put an end to the civil war and was supposed to stop the phenomenon of militias.106 Most of them have now become political parties. One of the armed
groups however, Hezbollah, was tacitly allowed to keep its arsenal, for the purpose of liberating the country from Israeli occupation.107 This special status has made it an essential actor in today’s Lebanese political landscape which, combined with the fact that it was one of the protagonists of the 2006 war that gave rise to UNIFIL-II, requires that the ‘Party of God’ be given particular attention here.
Hezbollah was formed in 1982 in response to the Israeli invasion of that year. It reunited several Shiite militias in the resistance against Israel. With the support of Iran and Syria who supply it with weapons - from small firearms to rocket propelled grenades and tanks -, Hezbollah was quick to make a name for itself: it gained the reputation of a fierce opponent in Lebanon but also of an international terrorist organization in the 1990s.108 Its ideology is to be part of the ‘Axis of Resistance’ against Western (especially American and Israeli) domination, together with Iran, Syria and Hamas. Its constitution still mentions the establishment of a Lebanese Islamic State and the destruction of Israel as part of its objectives. However there has been a major evolution in its size, methods and overall complexity.
If the ‘Party of God’ was initially just another violent armed group, it became much more. In 1992, it decided to take part in the parliamentary elections. As a political party, it has since then proven to be an essential player, with enough weight to bring down a government (Siniora, Hariri) and set up a new one (Mikati).109 It also started providing social services to the Shiite community in the South. All in all, it established itself as a ‘State within the State’, gaining enough legitimacy to keep its weapons, as long as it claims to use them against the potential invader only and not to achieve its political objectives within Lebanon.110 This is why its disarmament is a highly sensitive issue in the Lebanese political arena.111
Some observers have suggested that the Syrian crisis, in which it backs the Assad regime, might come at a great cost for Hezbollah and announce its future decline. They give two main reasons: the inability of Hezbollah to subsist without the support of the current Syrian regime if it comes to fall, and the inconsistency that lies in supporting other Arab uprisings but not the Syrian one.112 Only the future will tell if Hezbollah is able to maintain the support of the population and of its sponsoring
106 Taif Agreement (1989) Part II ‘Spreading of the Sovereignty of the State of Lebanon over all Lebanese territories’ A
<http://www.un.int/wcm/webdav/site/lebanon/shared/documents/Constitution> (22 June 2014).
107 J Bahout (n 79) 57. 108 C Hoppe (n 44) 22. 109 E Dingel (n 71) 71-75. 110 WK Mooney Jr (n 45) 32-33.
111 UNSG Reports S/2008/715 para 32; S/2009/330 paras 41-42; S/2010/105 para 35. 112 E Dingel (n 71) 75-76; J Bahout (n 79) 58.
States. As for Syria, Assad does not seem close to being overthrown and was re-elected on 4 June 2014.113
During the 2006 war, the question was raised whether Hezbollah’s actions were attributable to the Lebanese State. This discussion had an impact both on the jus ad bellum and the jus in bello applicable to that armed conflict. In the case of attribution, Lebanon was internationally responsible for Hezbollah’s conduct, Israel was entitled to take action in self-defence, and the armed conflict was of an international character.114 For my purpose, the idea is that if Hezbollah’s conduct is attributable to the Lebanese State, then the whole attitude and cooperation of the State with UNIFIL could be further questioned. To address this issue, the International Law Commission’s (ILC) Articles on State Responsibility (ARSIWA), which have customary status, are an appropriate tool. Indeed, articles 4 through 11 relate to the attribution of a conduct to a State. Article 4 says that the conduct of organs of a State is attributable to that State. Hezbollah, however, is not an organ of the Stat, mainly because it does not have that status under national law: it is not designated to exercise elements of legislative, executive or judicial authority. Article 5 attributes the conduct of an entity, which is exercising elements of governmental authority in accordance with national law, to the State. Here again, even if Hezbollah has arguably exercised elements of sovereignty in the South, it did not do so in virtue of Lebanese law. Article 8 of the ARSIWA, which is to be understood in light of the ICJ’s judgements in the Nicaragua and the Genocide cases,115 tells us that the conduct would be attributable if Hezbollah was acting under the direction or effective control of the Government. There is no evidence to suggest that this is the case. Article 10 can be ruled out as well, as Hezbollah is not an insurrectional movement: its aim is not to take control of the Lebanese State, nor to establish a new State on that territory. Rather, it takes part in an existing Government, in a political alliance which comes and goes from majority to opposition, and it claims to defend the existing State against foreign invasion.116 Articles 9 and 11 seem to be the most convincing arguments in favour of the idea of attribution. Article 9 deals with conduct carried out in the absence or default of the official authorities. The ILC’s Commentary indicates three cumulative conditions.117 Firstly, a conduct that relates to the exercise of governmental authority. If we
113 ‘Bashar al-Assad wins re-election in Syria as uprising against him rages on’, The Guardian (Damascus Syria 4 June
2014) <http://www.theguardian.com> (10 June 2014).
114 N Ronzitti ‘The 2006 Conflict in Lebanon and International Law’ in The Italian Yearbook of International Law
(Martinus Nijhoff Publishers Leiden 2006) vol 16, 6-10 (arguing that the conduct is attributable); contra C Hoppe (n 44) 27-31.
115 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) 1986 ICJ Rep paras 109
and 115 ; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (Judgment) 2007 ICJ Rep paras 399 ff.
116 C Hoppe (n 44) 26-31.
117 International Law Commission ‘Commentaries to the draft articles on the Responsibility of States for internationally
envisage defending the population from foreign aggression and occupation, then this condition is met. Secondly, the official authorities must be absent or defaulting. If it may be argued that at several periods in Lebanon’s history, the authorities had turned their backs on the South, the LAF’s activity since 2006 does not qualify as an absence or default of official authority, in my opinion. Thirdly, there needs to be circumstances that call for such a grasp of power, and a period during which governmental authority is being ‘gradually restored’, 118 like the Lebanese case, qualifies as such. As we see, the second condition is not met. Finally, article 11 of the ARSIWA says that conduct of an entity that is acknowledged and adopted by the State is attributable to it. The answer here depends on the envisaged conduct. If we consider the fact that Hezbollah keeps an arsenal to defend the country, then indeed, despite the great division around this question in the country, some official declarations seem to have endorsed it (for example the Baabda Declaration). But this is not in itself a contravention to Resolution 1701 or UNIFIL’s mandate, if it happens outside the area of operations. It is difficult to rely on any other conduct, because the exact nature and scope of Hezbollah’s activities are not certain, as I will show in the next sub-section. To conclude on the issue of attribution, I believe that it is far from certain that Hezbollah’s action are attributable to the State, and for the sake of this research I will envisage the armed group distinctly from the Lebanese Government.
b) Armed groups’ attitudes towards Resolution 1701 and UNIFIL
Hezbollah’s attitude towards UNIFIL is not easy to determine. In 2006, it supported Resolution 1701 in order to reach an end of the conflict, but some say it has not cooperated with its enforcement.119 Undeniably, Hezbollah shows certain defiance towards the UN in general, which it perceives as serving Western interests. This is illustrated by its animosity towards the Hariri Tribunal, which it considered to be a political body from the start but especially after it released indictments naming party members as suspects in its investigation.120 It is also true that Hezbollah is still heavily armed. More than that, it brags about it: there are statements of Nasrallah and other leaders claiming that Hezbollah has rearmed, with the help of Iran, and saying that such arsenal is to serve as a deterrent against potential Israeli aggression, at least until the southern neighbour withdraws from disputed areas such as the Sheb’a farms. Israel of course sees these statements as
118 ibid para 1.
119 E Dingel (n 71) 73 fn 2. 120 ibid 70-76.
threats to use force.121 Hezbollah also admitted to supporting Palestinian groups in Gaza, including
military support,122 and is more and more open about its involvement in the Syrian civil war, in
support of Assad’s regime.123
However, Hezbollah claims that it abides by Resolution 1701 by not having maintained an armed presence in UNIFIL’s area of operation, ie south of the Litani River and north of the Blue Line.124 And there is indeed not much evidence to prove otherwise. On 28 August 2008, some members opened fire on a LAF helicopter, killing the pilot, but this happened north of the Litani River.125 On 16 July 2009, one of its arms and ammunition depot blew up, within the area of operations this time.126 Other than that, either Hezbollah is just smart and organized enough not to get caught, or it has truly retreated its armed presence north of the area and the many illegal activities that still occur in the South are those of other armed elements.
Indeed, Hezbollah is not the only armed group left operating in Lebanon. Despite the fact that today, the Palestinian authorities cooperate with the Lebanese ones to regain control over the 12 registered refugee camps, these remain sanctuaries for Palestinian armed factions.127 According to Lebanese government reports, Hamas is seeking to strengthen and regroup its members inside refugee camps in Lebanon.128 Security in and around these camps is not guaranteed, as terrorist attacks occur, aimed at PLO representatives.129 In particular, the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) and Fatah al-Intifada maintain military presence outside of the officially established camps, south of Beirut and along the border with Syria, preventing governmental control over the area and potentially allowing for fighters and weapons to enter the country. Their respective leaders, Ahmad Jibril (on 31 August 2010) and Abu Musa (on 17 January 2010), reaffirmed their will to maintain the Palestinian military bases, even outside the official camps, thereby publicly challenging Lebanese sovereignty. There has been no progress in dismantling these groups, and they are unwilling to disarm so long as the Israeli-Arab conflict is not settled with guarantees of rights for the Palestinian people.130 There is also Fatah al-Islam, even
121 UNSG Reports S/2007/641 para 29; S/2008/135 para 34; S/2010/352 paras 31 and 37; S/2010/565 para 35;
S/2011/406 para 35; S/2011/715 para 34; S/2012/124 para 40; S/2012/502 para 38; S/2012/837 para 39; S/2013/120 para 36; S/2013/381 para 32; S/2013/650 para 44; E Dingel (n 71) 73-74.
122 UNSG Report S/2009/330 para 38.
123 UNSG Reports S/2013/381 para 39; S/2013/650 para 52. 124 UNSG Reports S/2009/566 para 40; S/2010/105 para 34. 125 UNSG Report S/2008/715 paras 29-31.
126 UNSG Report S/2009/566 para 6. 127 UNSG Report S/2008/715 para 34. 128 UNSG Report S/2009/119 para 35.
129 UNSG Reports S/2009/330 para 40; S/2013/650 para 48.
130 UNSG Reports S/2007/641 para 36; S/2008/135 para 41; S/2008/715 para 34; UNSG Report 2009/119 paras 34 and
though it seems to have taken serious hits: it was defeated by the LAF in a Palestinian camp in 2007,131 but still suspected of having attacked a UNIFIL checkpoint later, on 16 July 2007.132 The
Government has taken some fighters into custody and their intention appears to be to continue terrorist activities in the country.133 Its leader may have died in a confrontation with the LAF on 13 August 2010.134 In 2011, two members were arrested and are suspected of having fired rockets on Israel in 2009.135
Clashes between armed groups, notably in Palestinian refugee camps, indicate the presence of radical Islamist movements (Al-Qaeda, Al-Ahbash…), on top of the rest.136 Lebanese Salafi elements are also involved in the Syrian civil war, alongside the rebels.137 The recent rise of the Islamic State of Iraq and the Levant (ISIL or ISIS), whose claimed objective is to unite Lebanon, Syria and Iraq in an Islamic State, will most likely create further tensions.
Rocket firing against Israel,138 kidnappings, 139 assassinations140 and the frequent discovery of weapons and explosives are all forms of illegal activities that happen regularly. Despite investigations, most of them are not clearly attributed, and they prove that the presence and activity of armed elements on Lebanese territory outside the control of the State is still topical.
4.3. Israel
From the start, Israel was hostile to UNIFIL-I, because it saw the UN as being anti-Israel. However if UNIFIL was to operate, then Israel wanted it to have strong rules of engagement to be able to face the PLO. It used the alleged ‘weakness’ of UNIFIL to interpret its mandate narrowly, and deny it freedom of movement and control of the area. 141
In 2006, Israel seemed more willing to cooperate: Resolution 1701 was adopted on 11 August, three days later Prime Ministers Olmert and Siniora agreed to a cease-fire, and Israel withdrew progressively to let the LAF and UNIFIL, rather than Hezbollah, fill the gap. It had also lifted its air
para 37; S/2011/715 para 35; S/2012/124 para 41; S/2012/502 para 39; S/2012/837 para 42; S/2013/120 para 40; S/2013/381 para 34; S/2013/650 para 47.
131 UNSG Report S/2007/641 para 5. 132 UNSG Report S/2007/641 paras 7-8. 133 UNSG Report S/2007/641 para 30. 134 UNSG Report S/2010/565 para 38. 135 UNSG Report S/2011/715 para 14.
136 UNSG Reports S/2010/105 para 38; S/2010/565 paras 36 and 39; S/2011/715 para 36; S/2012/124 para 42;
S/2012/502 paras 40-41.
137 UNSG Report S/2013/381 para 39.
138 UNSG Reports S/2009/119 para 7-8 and 11; S/2009/566 paras 8-10; S/2012/124 paras 11-13; S/2013/120 para 3. 139 UNSG Reports S/2011/406 para 39; S/2011/715 para 37.
140 UNSG Reports S/2012/837 para 41; S/2013/120 para 39. 141 T Findlay (n 32) 108 and 110; R Murphy (n 1) 9.
and naval blockade by 6 September.142 Let us now turn to the cooperation with UNIFIL-II since
then.
Israel’s primary obligation, like Lebanon’s, was the cessation of hostilities. It has generally been observed, but the tension at the border is still high and violence can escalate quickly. There are cases of IDF soldiers firing towards Lebanese territory, allegedly accidentally.143 Israeli explosive devices have been found on Lebanese territory.144 There were of course the LAF-IDF confrontations of 3 August 2010 and 1 August 2011, already mentioned above. Regularly, stand-offs occur during which the IDF points weapons at the LAF, UNIFIL and even civilians.145 When dealing with protestors, Israel was found to use force excessively.146 Finally, there is the retaliatory fire after rockets, launched from Lebanese soil, hit Israeli territory.147
The second obligation was to withdraw all its forces from south Lebanon, which Israel has not completely done, as its troops remain in northern Ghajar and have on occasion opened fire and killed civilians there. They started cooperating with UNIFIL to discuss withdrawal, but no progress has been made to this day.148
Respect for the Blue Line in particular leaves a lot to desire. The main violation is done by daily
(up to 36 in one day) air incursions in Lebanese territory, by aircrafts and unmanned aerial vehicles, sometimes at low altitude, breaking the sound barrier over populated areas and creating fear and anger amongst the civilian population. Israel claims that these are a necessary security measure and will continue until the arms embargo is fully enforced. On one occasions, the LAF opened fire on the Israeli aircraft. These air raids undermine the credibility of the UN and the Lebanese authorities, both of which protest against these violations.149 Ground incursions on the part of Israeli soldiers
also occur, sometimes maybe inadvertently,150 but on 7 August 2013 they knowingly engaged in an
operation north of the Blue Line, which led to exchange of fire with Hezbollah.151 In addition, Lebanon has made allegations of Israeli spies crossing the border and of an Israeli spying network
142 N Ronzitti (n 114) 14-16.
143 UNSG Reports S/2009/330 para 14; S/2010/565 para 128. 144 UNSG Report S/2009/566 para 14.
145 UNSG Reports S/2008/135 para 12 ; S/2011/406 para 18; S/2013/650 para 23. 146 UNSG Reports S/2011/406 para 9; S/2012/837 para 15.
147 UNSG Report S/2013/650 para 13.
148 UNSG Reports S/2007/641 para 16; UNSG Report 2008/135 paras 10 and 20; S/2008/715 paras 8-9; S/2009/119
para 15; S/2009/330 para 12; S/2009/566 para 15; S/2010/105 para 8; S/2010/352 para 8; S/2010/565 para 11; S/2011/406 para 12; S/2011/715 para 9; S/2012/124 para 18; S/2012/502 paras 10 and 13; S/2012/837 para13; S/2013/120 para 13; S/2013/381 paras 10-11; S/2013/650 para 21.
149 UNSG Reports S/2007/641 para 12; S/2008/135 para 17; S/2008/715 para 8; S/2009/119 para 5; S/2009/330 para 19;
S/2009/566 para 16; S/2010/105 para 9; S/2010/352 para 9; S/2010/565 para 12; S/2011/406 para 13; S/2011/715 para 10; S/2012/124 para 19; S/2012/502 para 14; S/2012/837 para 14; S/2013/120 para 12; S/2013/381 para 9; S/2013/650 para 20.
150 UNSG Reports S/2009/119 para 16; S/2013/650 para 19. 151 UNSG Report S/2013/650 paras 10-11.
operating in Lebanon, which have been confirmed to be true.152 Israeli civilians also cross the Blue
Line,153 in particular construction workers.154 All of these incursions constitute a breach of
paragraphs 4 and 5 of Resolution 1701.
By way of cooperation, security and Liaison arrangements have been made with UNIFIL. First and foremost, the IDF participates in the tripartite forum with the LAF and the UN Force. These meetings, which address key security and operational issues and discuss incidents and investigations in an endeavour to build trust, progressively became the ‘most significant factor of stabilization.’155 Secondly, a hotline and a liaison office have been established between UNIFIL and IDF officers. Even though Israel agreed to the establishment of a UNIFIL office in Tel-Aviv in 2007, it has since then declared it to be unnecessary.156 More cooperation could be expected still: for example, the IDF most often does not communicate with UNIFIL when it decides to fire (back) on Lebanon.157 It also took a while for UNIFIL to obtain Israeli strike data from the war of 2006 that would help UNIFIL demine. Uncertainty remains regarding the level of contamination, and the cost is paid in civilian lives and limbs.158 The IDF did hand over some strike information on 12 May 2009, the assessment of which enabled the demining personnel to confirm more contaminated strike locations.159 Some gestures of good will have also been made when Israeli negotiated with Hezbollah on the exchange of Lebanese or Palestinian prisoners.160
Israel alleges that Hezbollah has rebuilt its military presence both in and out (but still within fire range of Israel) of UNIFIL’s area of operation, and that it has adapted to circumvent UNIFIL control, but does not provide conclusive intelligence or proof. UNIFIL investigates such claims with the LAF, but cannot search private properties without credible evidence that a violation of the resolution is occurring.161
152 UNSG Reports S/2009/330 paras 9-10 and 13; S/2009/566 para 5; S/2010/105 para 6; S/2010/565 para 6;
S/2011/406 para 25.
153 UNSG Reports S/2009/566 para 17; S/2013/381 para 16. 154 UNSG Report S/2011/406 para 16.
155 UNSG Reports S/2007/641 para 15; S/2008/135 para 19; S/2008/715 para 14; S/2009/119 para 29; S/2009/330
para 32; S/2009/566 para 34; S/2010/105 para 30; S/2010/352 para 27; S/2010/565 para 31; S/2011/406 para 30; S/2011/715 paras 25-29; S/2012/124 paras 32-33; S/2012/502 paras 29-31; S/2012/837 paras 32-34; S/2013/120 paras 30-31; S/2013/381 para 27; S/2013/650 paras 39-40.
156 UNSG Reports S/2007/641 para 25; S/2008/135 para 32; S/2008/715 para 17; S/2009/119 para 31; S/2009/330 para
35; S/2009/566 para 38; S/2010/105 para 32; S/2010/352 para 30; S/2010/565 para 34; S/2011/406 para 33; S/2011/715 para 24; S/2012/124 para 31; S/2012/502 para 28; S/2012/837 para 31; S/2013/120 para 29; S/2013/381 para 26.
157 UNSG Reports S/2009/119 para 8; S/2009/566 paras 8-11.
158 UNSG Reports S/2007/641 para 46; S/2008/715 para 49; UNSG Report 2009/119 para 48. 159 UNSG Reports S/2009/330 para 51; S/2009/566 para 51; S/2010/105 para 45.
160 UNSG Reports S/2007/641 para 47; S/2008/715 paras 50-58.
161 UNSG Reports S/2007/641 paras 20 and 28; S/2008/135 paras 26 and 35; S/2008/715 paras 24-26; S/2009/119
para 26; S/2009/330 para 28; S/2010/105 para 24; S/2010/352 paras 21-22; S/2010/565 paras 25-26, 45; S/2011/406 paras 26-27; S/2011/715 para 21; S/2012/124 para 27; S/2012/502 para 22; S/2012/837 para 26; S/2013/120 para 23; S/2013/381 para 22; S/2013/650 para 33.
