1 Except for the first meeting, which was dedicated to procedural matters.

2 See Appendix I-II, infra.

3 Which called upon the parties, under Article 40 of the United Nations Charter, to negotiate an armistice in order to facilitate a transition from the truce to a permanent peace; Security Council Official Records, Third Year, No. 126 (381st Meeting), p. 53.

4 United Nations Treaty Series, Vol. 42, No. 655, pp. 288–298 Google Scholar; 1 K.A. No. 2, Vol. 1, p. 21.

5 But see infra, n. 9, as to the Lebanese position on the present status of the Armistice Agreement.

6 See Article 60(1) of the Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, United Nations Document A/CONF. 39/27. (1969) 63 Am. J. Int'l L. 875 CrossRefGoogle Scholar; (1969) 8 I.L.M. 679.

7 See K.A., Supplement to Vols. 1-30, at 8.

8 Such as those Resolutions calling for cease-fire during and after the 1967 War (Resolutions 233, 234, 235 and 236 of 6, 7, 9 and 14 June 1967, Security Council Official Records, 22nd year, Resolutions and Decisions, 1967, pp. 2-5; also reproduced in Lapidoth, R. and Hirsch, M., The Arab-Israeli Conflict and Its Resolution: Selected Documents, (Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1992) 126 Google Scholar et seq.); those Resolutions relative to the 1973 War (Resolutions 338, 339, 340 and 341 of 22, 23, 25 and 27 October 1973, Security Council Official Records, 28th year, Resolutions and Decisions, pp. 10-11; also reproduced in Lapidoth and Hirsch, ibid., at 145 et seq.); and those resulting from the 1978 and 1982, on which see nn. 10 and 11, infra.

9 See, for example, Para. 2 of the Third Part of the Lebanese-Syrian Al-Ta'if Agreement of 22 October 1989, reproduced in Lapidoth and Hirsch, supra n. 8, at 374; see also the address by the Lebanese Permanent Representative to the United Nations in the Security Council on 15 April 1996, claiming that the I.D.F. Grapes of Wrath Operation was “a flagrant violation of … the Armistice Agreement of 1949 between Lebanon and Israel”: United Nations Press Release SC/6207, 3653rd Meeting (Night) 15 April 1996. In that respect, see also the abortive 1983 Peace Treaty, infra n. 12.

10 Security Council Resolution 425, of 19 March 1978, Security Council Official Records, 33rd year, 1978, p. 5; see also Security Council Resolutions 426 and 427 of 19 March 1978 and 3 May 1978, Security Council Official Records, 33rd year, 1978, p. 5.

11 See Resolutions 508 and 509 of 5 and 6 June 1982, Security Council Official Records, 37th year, Resolutions and Decisions, p. 5; United Nations Document S/INF/38, p. 6, 1982; also reproduced in Lapidoth and Hirsch, supra n. 8, at 285.

12 [Draft] Agreement between the Government of the State of Israel and the Government of the Republic of Lebanon, 17 May 1983; reproduced in Lapidoth and Hirsch, supra n. 8, at 299.

13 Article I(2) of the Agreement.

14 Article I(1) of the Agreement.

15 Article I(3) of the Agreement; see also the Annex of the Agreement, detailing the withdrawal.

16 Government's Decision No. 291 of 14 January 1985.

17 See, for example, “Unlawful Killings During Operation ‘Grapes of Wrath’”, Amnesty International Report UDE 15/42/96, July 1996 (internet edition http://www.amnesty.org/ailib/aipub/1996/MDE/51504296.htm), p. 3 Google Scholar.

18 26 April 1996 Understanding, untitled, see Annex I, infra.

19 Document titled “The Monitoring Group Established by the April 26, 1996 Understanding” of 12 July 1996; see Annex II, infra. Seemingly, this document has also not been signed.

20 The content of these side letters has not been made public, except that they have been described as “guaranteeing protection of vital Israeli interests”. Similarly, it is not known whether Lebanon (or Syria, for that matter) has received similar guarantees from the United States or from France.

21 See discussion in Part E, infra.

22 See, for example, the website of the Israeli Ministry of Foreign Affairs (http://www.israel-mfa.gov.il/peace/ceasefir.html); see also “Lebanon Monitoring Group to Begin Operations Within a Few Weeks” (Background Briefing on Group Procedures) (890), Daily Washington File, 12 July 1996.

23 Or the paragraphs accompanying them.

24 The term “cease-fire” itself denotes a form of cessation of hostilities; Fleck, for example, notes that: “cease-fire, truce and armistice mark three stages of progress from war to peace. However, no precise legal distinction appears possible between these three terms” and that their effect is, however, to temporarily suspend or terminate the hostilities: Fleck, D., “Suspension of Hostilities”, in Bernhardt, R., ed., Encyclopedia of Public International Law (North-Holland, Amsterdam/London/New York/Tokyo, 1982) Vol. 4, 239 Google Scholar. But not only the terminology of the Understanding is inconsistent with the notion of a cease-fire; the substance of the four points of the Understanding also indicates that the use of this term is erroneous; the Understanding does not prescribe a cessation (let alone the termination) of hostilities in Southern Lebanon. All it regulates is the manner in which these will be conducted by prescribing certain rules relative to the method of warfare and the protection of civilian population. Accordingly, the Understanding bears none of the marked characteristics of a cease-fire. Bailey, who has studied the concept of cease-fire in light of Security Council practice, concludes that a cease-fire includes, since the establishment of the United Nations, the following characteristics: “1. Issuance by the parties of cease-fire orders to all forces under their control; 2. Parties free to adjust their defensive positions behind the cease-fire lines, but no augmentation of military forces to be allowed nor the introduction of additional military potential; 3. Parties to confer regarding local changes in the disposition of military forces, with a view to avoiding incidents and facilitating the cease-fire; 4. Demarcation of de facto lines separating the forces of the two sides, and possibly also demilitarized zones; 5. Military observers responsible to the Security Council or a subsidiary organ to supervise the observance of the cease-fire”: Bailey, S.D., “Cease-Fires, Truces and Armistice in the Practice of the United Nations Security Council”, (1977) 71 Am. J. Int'l L. 461, at 470 CrossRefGoogle Scholar.

This statement applies to the term as used in the practice of the Security Council; nevertheless, it reflects the nature of a cease-fire and, as such, sufficiently demonstrates the inaccuracy in using the term to describe the Israeli-Lebanese Understanding.

25 Regulations Respecting the Laws and Customs of War on Land, Annex to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land of 18 October 1907; entered into force on 26 January 1910; (1907) 2 Am. J. Int'l L. Supplement 90Google Scholar.

26 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12,1949; entered into force 21 October 1950; (1950) 75 United Nations Treaty Series 287 Google Scholar; 30 K.A. 559.

27 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, entered into force on 7 December 1978, (1979) 1125 United Nations Treaty Series 3 Google Scholar.

28 See, for example, A. Randelzhofer, “Civilian Objects”, in Encyclopedia of Public International Law, supra n. 24, at 603; and A.M. de Zayas, “Civilian Population, Protection”, ibid., at 606; see also Amnesty International Report, cited supra n. 17, at 4.

29 Nor are France and the United States; Syria, however, too acceded to the First Protocol — with reservations — in November 1983.

30 That is the conclusion of Amnesty International: see the Report cited supra n. 17, at 15. See, for example, Arts. 25 and 27 of the Hague Regulations; Arts. 14, 15, 18 and 19 of the Fourth Geneva Convention; and Part IV of the First Additional Protocol.

31 See the discussion in the Amnesty International Report cited supra n. 17, at 15.

32 First non-numbered paragraph of the Understanding.

33 Third non-numbered paragraph of the Understanding.

34 Fourth and Fifth non-numbered paragraphs of the Understanding; the bilateral talks with Syria and Lebanon have not been resumed since.

35 Ibid.

36 See infra, text accompanying n. 98.

37 See, for example, Article VII of the Israeli-Egyptian Treaty of Peace, reproduced in Lapidoth and Hirsch, supra n. 8, at 218.

38 This question has not arisen in the meetings of the Monitoring Group, which have a strong tendency to be informal, pragmatic and non-legalistic.

39 But see the discussion on the types of meetings of the Monitoring Group, infra, text accompanying n. 63.

40 On which doctrine see Schermers, H.G. and Blokker, N.M., International Institutional Law: Unity Within Diversity (Martinus Nijhoff Publishers, The Hague/London/Boston, 3rd revised ed., 1995) 158 CrossRefGoogle Scholar et seq.

41 Which matter is made explicit in Article 3.E of the Protocol.

42 These will be presented immediately; their effect on the functions and mandate of the Monitoring Group will be assessed in Part D.3 discussing the character of the Monitoring Group and its powers: Part D.3, infra.

43 On whose participation see “Until a White Smoke Comes Out”, Ici France, No. 4, Juillet-Août 1998, p. 10 (published by the Embassy of France in Israel).

44 Article 1.A of the Protocol; for a different arrangement concerning the French and U.S. delegations, see infra, text accompanying n. 48.

45 Article 3.A of the Protocol; the Israeli delegation is thus headed by the Commander of the I.D.F.'s Liaison Unit, a Brigadier-General.

46 See Part E, infra.

47 The Israeli delegation, except for its head, consists of a military operations officer, a military lawyer specializing in international law and a representative of the Ministry of Foreign Affairs.

48 Which will be presented and discussed in Part E, infra.

49 The first Chair — according to Article 1.B of the Protocol — was appointed by the United States.

50 Article 1.C of the Protocol.

51 Articles 1.C and 3.A of the Protocol.

52 Article 1.F of the Protocol.

53 Another indication of the essentially different status of the United States and French delegations.

54 Article 1.D of the Protocol.

55 Article 3.A of the Protocol; see also Article 1.F. As to on-site verification, see infra, Part D.3.c.

56 Article 3.A clearly etsablishes that meetings of the Monitoring Group, with the participation limited to the five member states, will be held at the UNIFIL headquarters in Naqoura.

57 Article 3.F of the Protocol.

58 Part D.3, infra.

59 The term “Members” of the Monitoring Group is not mentioned in the Understanding; the Protocol, however, contains several such references: Article 1.C (“The Chair … will receive complaints … and will circulate them among the members of the group”); Article 1.F (“… The Chair will immediately notify the members (of the submission of a complaint — R.M.G.) by providing a copy of the complaint and call a meeting … immediately”); Article 3.A (“By invitation of the group Chair, or at the requests of any one of its members …”); Article 3.B (“The members of the Monitoring Group will determine through their discussions … whether the matter requires verification”); Article 3.E (“If there is unanimity among the members of the Monitoring Group, the report will identify the party responsible for not complying with the understanding …”). But the second paragraph of Article 3.A provides a clear indication that the designation “member” refers only to any of the five states participating in the Monitoring Group: “Meetings of the Monitoring Group, with the participation limited to the five member states …”. The term “delegates” seems to be referring to the individuals comprising each delegation other than the heads of the delegations (Article 1.A). The term “representatives”, when preceded by the designation “military”, seems to refer to the heads of the delegations (see Articles 1.A and 3.A) and when it appears without that designation, to any of the individuals comprising a delegation (Articles 3.C and 3.F).

60 Article 3.A of the Protocol.

61 Article 1.C and Article 1.D of the Protocol.

62 Article 3.E of the Protocol.

63 See the discussion on the functions of the Monitoring Group, text accompanying n. 39, supra.

64 In a period of nearly two years, roughly one complaint per fortnight on average.

65 Supra.

66 Article 1.D of the Protocol.

67 Article 1.F of the Protocol and second non-numbered paragraph of the Understanding.

68 Article 1.F of the Protocol.

69 Articles 1.C and 1.F of the Protocol.

70 Article 1.F of the Protocol.

71 On verification see Part D.3, infra.

72 Article 1.C of the Protocol.

73 Naturally, this part of the proceedings remains confidential and will therefore not be commented upon in detail.

74 See infra, Part D.3.d.

75 Article 3.C of the Protocol.

76 Ibid.

77 Article 3.D of the Protocol.

78 Article 3.E of the Protocol; this provision is exactly the reason that the Monitoring Group's meetings are being conducted in a marathon-like fashion so that they stretch over whole days.

79 The decision-making process and powers of the Monitoring Group will be dealt with infra.

80 I.e., Lebanon and Israel.

81 Except for its first meeting, as noted supra n. 1.

82 As should be the case where there is no unanimity.

83 As should be the case where there is unanimity.

84 Including, where applicable, the findings of the verification mission; see, for example, Press Statement on the December 12, 1996 meeting of the Monitoring Group.

85 Recall that the report is to “identify the party responsible for not complying with the understanding”.

86 Recall that the report is to “contain a description of the Monitoring Group's discussions of the complaint …”.

87 Press Statement on the February 9-10, 1998 meeting of the Monitoring Group, and Press Statement on the July 16, 1997 meeting of the Monitoring Group, respectively.

88 Such as: “The Group also heard the presentation of an Israeli complaint stating that on January 8, 1998 shrapnel impacted in the Israeli settlement of Zar'it. The Israeli delegate stated that a Lebanese armed group had launched a shell which produced shrapnel that impacted in Zar'it, in violation of the Understanding, without causing casualties or property damage. The Lebanese delegate stated that he had no confirmation that such shelling occurred, that the information provided to the group was not sufficient to justify the filing of this complaint, and that no violation of the Understanding had taken place. The Monitoring Group urged that combatants act strictly in accordance with the provisions of the Understanding and that greater precautions be taken to ensure that civilians are not affected in the course of military actions.”; Press Statement on the January 12, 1998 meeting of the Monitoring Group.

89 Press Statement on the February 9-10, 1998 meeting of the Monitoring Group.

90 Press Statement on the July 17, 1997 meeting of the Monitoring Group.

91 Ibid.

92 Press Statement on the December 12, 1996 meeting of the Monitoring Group.

93 For criticism on the expression “deal and address” which is also to be found in Article 2.B of the Protocol, see text accompanying n. 41, supra.

94 For example, “The Monitoring Group called on responsible authorities to abide strictly by the April 26, 1996 Understanding. The Group reiterated that combatants are responsible for the manner in which they conduct their firing missions and that they should bear in mind the potential consequences of their actions. It urged responsible authorities to take greater precautions to ensure that populate areas not be the intentional or unintentional recipients or launching grounds of attacks”, or “The Monitoring Group reiterated that Israel and those cooperating with it are responsible for the manner in which they use explosive devices, in particular devices without target discrimination mechanisms, and called on Israel to take effective measures to prevent random civilian casualties”; Press Statement on the July 30-31, 1997 and June 2-3, 1998 meetings of the Monitoring Group, respectively.

95 For example, “The Monitoring Group urged that combatants act strictly in accordance with the provisions of the Understanding and that greater precautions be taken to ensure that civilians are not affected in the course of military actions.”; Press Statement on the January 12, 1998 meeting of the Monitoring Group.

96 This question was raised at the Monitoring Group's meeting of August 15,1996. The Report and Press Statement of the Monitoring Group reflected the support of the United States and French delegations of the Israeli delegation's stance.

97 Press Statement on the July 30-31, 1997 meeting of the Monitoring Group.

98 That is, international law in general and, in particular, the laws of armed conflict.

99 Despite the apparent absence of reference to interpretation in the definition of the Monitoring Group's mandate; see text accompanying n. 37, supra.

100 Amnesty International Report, n. 17, supra, at 15.

101 On which see Article 51(6) of the First Additional Protocol.

102 Press Statement on the July 16, 1997 meeting of the Monitoring Group.

103 On which see Article 51(4) of the First Additional Protocol.

104 A term taken in itself from the First Additional Protocol and the Geneva Conventions.

105 Press Statement on the September 22, 24 and 25, 1997 meeting of the Monitoring Group.

106 Press Statement on the July 17, 1997 meeting of the Monitoring Group.

107 Consensus, in this context, represents a process different from that employed by the unanimity rule; whereas unanimity “may require the affirmative votes of all those participating in the vote”, consensus “is more concerned with the absence of any formal objection and may thus be easier to achieve. Both unanimity and consensus protect participants in the conference from decisions being taken against their strongly held views, but consensus allows the work of the conference to go forward on the basis of the toleration of all the participants even if not with their positive agreement”: Jennings, R. and Watts, A., eds., Oppenheim's International Law, (Longman, , 9th ed., 1992, Vol. I) (Peace) (hereinafter: “Oppenheim's International Law”) 1186–1187 Google Scholar.

108 Even though, unlike an arbitral panel, its decisions are not binding. See Merrills, J. G., International Dispute Settlement, (Cambridge, Grotius Publications, 2nd ed., 1991) 44 Google Scholar.

109 Article 2 of the Vienna Convention defines “treaty” as follows: “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. As this definition is limited to the use of the term “treaty” in the Vienna Convention and as this definition has been formulated “without prejudice to the use of those terms” and as it adds formal requirements to those made by general international law, use will be made here of the general international law definition.

110 McNair, , The Law of Treaties, (Oxford, Clarendon Press, 1961) 6 Google Scholar: “international law itself prescribes neither form nor procedure for the making of international engagements”; Oppenheim's International Law, supra n. 107, at 1207-1208.

111 The function of signature is dual: first, it may authenticate the text agreed upon; second, it may express the consent of the signing state to be bound by the agreement. In our case, the first function was assured by the involvement of a third party (the United States) in the negotiations, who itself expressed the Understanding and made it public; the second function, namely the expression of the parties' consent, may be inferred, as will be discussed infra; see Oppenheim's International Law, supra n. 107, at 1224-1225; see also Article 11 of the Vienna Convention.

112 Temple of Preah Vihear Case (Preliminary Objections) (1961) ICJ Reports 31.

113 Oppenheim's International Law, supra n. 107, at 1208; see Article 2.1(a) of the Vienna Convention on the Law of Treaties; see also South West Africa Cases (Preliminary Objections) (1962) ICJ Reports 331: “terminology is not a determinant factor as to the character of an international agreement or undertaking”.

114 McNair, supra n. 110, at 15.

115 Oppenheim's International Law, supra n. 107, at 1209-1210, n. 8.

116 (1978) ICJ Reports 39.

117 McNair, supra n. 110, at 4. Note that the requirement presented in Article 2 of the Vienna Convention that a treaty be “governed by international law” was interpreted by the ILC as embracing the intent of the parties to create international rights and duties inter se; ILC Commentary (Treaties), Article 2, Paragraph (6), (1966) Yearbook of the International Law Commission, Vol. II, at p. 189.

118 Oppenheim's International Law, supra n. 107, at 1202.

119 Although it has been noted supra, text accompanying n. 107, that the mere absence of a signature does not, in itself, preclude a document from having validity in international law, and that the evidentiary purpose of the signature in this case was ensured by the United States' involvement.

120 Note that the preamble to the Understanding records that “The United States understands that after discussions with the governments of Israel and Lebanon, and in consultations with Syria, Lebanon and Israel will ensure the following:”.

121 But see the final two paragraphs of the Understanding, cited infra.

122 The Understanding was not published in the Kitvei Amana (Israel Treaty Documents) series; it is not known whether it was officially published in Lebanon, but there is ground to believe that it was not. On the other hand, the Ministerial Committee for Security Affairs, acting for the government of Israel as a whole, has in fact formally approved the Understanding in its Decision B/24 (meeting of April 26, 1996; see also Government's Decision No. 786 of April 28, 1996, endorsing this approval). It seems that had it been a purely military arrangement, reporting to the government would have been sufficient. The formal approval clearly suggests, therefore, that the Government had regarded the Understanding a legally binding document, at least from the point of view of the constitutional process.

123 The absence of such registration “may be taken to indicate an intention to enter into only a non-binding engagement, or as supporting statements to that effect”; Oppenheim's International Law, supra n. 107, at 1202; see also South West Africa Cases (Preliminary Objections), supra n. 113, at 331-332, and the dissenting opinions of Judge Spender and Judge Fitzmaurice, at 503.

124 See the preamble to the Understanding, supra n. 120. In addition, note the provision concerning the simultaneous announcement of the Understanding “in all countries concerned”, quoted in full infra.

125 The fact that the delegations are headed by military personnel is counterbalanced by the participation of diplomats and, more importantly, by the fact that the followup procedure is to be conducted at the level of Foreign Ministers.

126 Albeit implicitly, see discussion accompanying nn. 37 and 99, supra.

127 Even if that law is very limited in scope, amounting to the four points of the Understanding and supplemented by the laws of armed conflict relative to the protection of civilians.

128 Israel, as noted above, had no desire to have the Understanding construed as a substitute for a peaceful settlement within the framework of the Madrid Peace Process, and devising an informal yet “legal” arrangement was in part an answer to this concern. Lebanon, on the other hand, did not wish the arrangement to be construed as undermining the Damascus-dictated rejectionist policy towards progress in the peace process and, in particular, as an attainment of a “separate arrangement” breaking the linkage of the Lebanon issue to the Golan Heights question. These circumstances explain the absence of formality in the conclusion of the Understanding and yet, they also lend support to the argument that the intention of the parties was not to enter upon a non-legally binding undertaking.

129 Note, however, text accompanying n. 131, infra.

130 Supra, n. 122.

131 Personal interview with Mr. Alan Baker, whom the author wishes to thank.

132 That is, if it cannot be unequivocally inferred that the parties have originally intended to enter upon a legally binding regime.

133 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Adviser and Director of Treaty Division, and by Ms. Rina Assaf of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.