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UNITED
NATIONS
S

        Security Council
S/8699
31 July 1968

NOTE BY THE SECRETARY-GENERAL UNDER SECURITY COUNCIL
RESOLUTION 237 (1967) AND GENERAL ASSEMBLY RESOLUTION 2252 (ES-V)


1. In my note to the Security Council of 19 April 1968 (A/7085, S/8553), I informed the Council of my suggestion to all the parties concerned to send a representative to the Middle East, in particular for the purpose of meeting my reporting obligations under Security Council resolution 237 (1967) of 14 June 1967 and General Assembly resolution 2252 (ES-V) of 4 July 1967 concerning humanitarian questions. In that note I also made available to the Security Council the texts of notes verbales exchanged between the parties concerned and myself on this matter up to and including 19 April 1968.

2. On 2 May 1968, I received the following letter from the Permanent Representative of Syria:

"Excellency,

(Signed) George J. TOMEH
Ambassador
Permanent Representative"


3. On 16 May, I took up with the Permanent Representative of Syria the questions raised in his letter mentioned in the preceding paragraph. Subsequently, I received from him a further letter dated 20 May 1968, which reads as follows:

"Excellency,

(Signed) George J. TOMEH
Ambassador
Permanent Representative"


4. On 23 May, the Permanent Representative of Israel expressed to me orally the desire of his Government that the scope of the mission of the Representative should include the treatment of Jewish communities in Iraq and Lebanon. I expressed to the Permanent Representative of Israel my surprise that this aspect of the matter should be raised at this late stage, noting particularly that it had not been raised in connexion with the previous humanitarian mission, nor had it been specified in the original Israel note verbale accepting my suggestion. I asked the Permanent Representative to communicate this request and the reasons for it to me in writing. I also pointed out to the Permanent Representative of Israel that I was not favourably inclined towards this request for the following reasons:

(a) No such request had been made at the time of the previous humanitarian (Gussing) mission;

(b) For some time the Secretary-General had been dealing directly with the question of the treatment of the Jewish community in Iraq through the Permanent Representative of Iraq and intended to continue to do so;

(c) The Secretary-General had never before heard from any source any suggestion of a problem of this nature existing in Lebanon;

(d) It was very doubtful in the Secretary-General's view that the Security Council resolution could properly be interpreted as extending to Iraq in this regard.

5. The Permanent Representative of Israel undertook to communicate to me in writing the new position of the Government of Israel on this matter and the reasons for it. The written statement in the form of an aide-mémoire was finally handed to me on 12 June and reads as follows:

"AIDE-MEMOIRE

The Secretary-General's Special Representative
concerning Humanitarian Questions in the Middle
East Area (S/8553 of 19 April 1968)


6. On 18 June, I replied to the aide-mémoire in the following letter:

"Dear Mr. Ambassador,


(Signed) U THANT
Secretary-General"

7. On 26 June, the Permanent Representative of Israel handed to me the following reply to my letter of 18 June:

"Dear Mr. Secretary-General,

(Signed) Yosef TEKOAH
Permanent Representative of Israel
to the United Nations"


8. On 27 June, I addressed another letter to the Permanent Representative of Israel, as follows:

"Dear Mr. Ambassador,

(Signed) U THANT
Secretary-General"


9. The following reply to my letter of 27 June was received from the Permanent Representative of Israel under date of 8 July:

"Dear Mr. Secretary-General,


(Signed) Yosef TEKOAH
Permanent Representative of Israel
to the United Nations"


10. I responded to the letter of 8 July by my letter to the Permanent Representative of Israel of 15 July 1968 and on the same date addressed new notes on the matter of the second mission to the Permanent Representatives of Jordan, Syria and the United Arab Republic. The letter to Israel was as follows:

"Dear Mr. Ambassador,

(Signed) U THANT
Secretary-General"

"(Enclosure)

Brief legal analysis


11. The notes to the three Arab representatives were identical and were as follows:

12. It will be noted that a brief legal analysis concerning the application and scope of the relevant General Assembly and Security Council resolutions was attached to my letter of 15 July 1968 to the Permanent Representative of Israel. This was done reluctantly and only when it became necessary to do so. For, throughout my consultations with the interested parties concerning both the first and the projected second humanitarian missions, I have sought to avoid legal interpretations and their entanglements, in the interest of expediting the humanitarian work of the mission. However, the legal position, as set forth in the memorandum referred to, was known to me from the beginning of the discussions since, as a matter of routine, in discharging any responsibilities given to me in the implementation of any resolution adopted by an organ of the United Nations I seek legal interpretation and guidance. It will be noted that in this correspondence, I have consistently emphasized that the second humanitarian mission would have the same terms of reference and general scope as the first (Gussing) mission.

13. Notes from the Permanent Representative of Syria and the Chargé d'affaires of Jordan in response to my note of 15 July were received on 23 July. A note from the Deputy Permanent Representative of the United Arab Republic was received on 25 July 1968. The texts of these three notes were as follows:


14. On 30 July, I received from the Permanent Representative of Israel a letter dated 29 July 1968, transmitting a reply to my letter of 15 July, from the Minister for Foreign Affairs of Israel. That reply also was dated 29 July 1968. These two letters are as follows:

"Dear Mr. Secretary-General,

(Signed) Yosef TEKOAH
Permanent Representative of Israel
to the United Nations"


"Excellency,

(Signed) Abba EBAN"


Summation and comment

15. The conclusion seems to me to be inescapable that, in the light of the circumstances set forth in the foregoing paragraphs of this report, there is no basis at present on which the mission could proceed. It would not be proper to ask a responsible person to undertake a mission of this kind without agreement with the parties on the basic functions of the mission and without being able to offer him reasonable assurance that he would have the co-operation of the parties concerned and the assured access essential to the discharge of his responsibility. I strongly feel that the inability to dispatch the mission is not only regrettable but also that the obstacles to its dispatch could be easily surmounted, given the will to do so. That is why I have urged that the scope and terms of the new mission afford a good enough basis for acceptance of the mission by the parties.

16.The first humanitarian (Gussing) mission went out without anything approaching the sort of difficulty about its scope and terms of reference which has been encountered in the effort to establish the second mission. I have emphasized time and again, orally and in writing, that the projected second mission is to have the same scope and terms of reference as the first. I find it hard to believe that there can be any doubt or confusion in anyone's mind about this. Thus, if the Gussing mission was acceptable and accepted, and given the necessary access and co-operation, it is not apparent to me why the second mission should not enjoy the same treatment. In this regard, it should be clear from the correspondence set forth in this report that the difficulty arises only from an attempt to broaden the scope and terms of reference of the new mission beyond those which applied to the old.

17. My legal advice is that both the terms of reference and that scope went as far as the resolutions of the Security Council and the General Assembly would permit. I am, necessarily, bound by the provisions of the two resolutions in seeking to give effect to them, however broad my own humanitarian concern might be. It is the fact that my concern about the treatment of the Jewish communities has been expressed in repeated approaches of one kind or another on their behalf to the Governments of the countries concerned and, in some instances, with constructive results. There is no question of one-sided interest or effort as between the Arab and Jewish peoples. The term "discrimination" is too often employed loosely. Differences of view and interpretation can be honest and valid without being in the least discriminatory. There is an unavoidable limitation with regard to the scope of this mission's activities resulting from the (operative) provisions of the two resolutions on which it is based.

18. The question of the inclusion of the treatment of the Jewish minorities in Iraq and Lebanon was not raised during the discussions leading to the activation of the Gussing mission. In fact, no mention of Lebanon in this context had been made until rather late in the discussions concerning the second mission. In the discussions I have expressed my conviction that the resolution could not be stretched to cover these two countries, on the legal level. But on the practical side my continuing concern about the situation in Iraq has been manifested by a series of discussions of the matter with the Permanent Representative of Iraq. This issue, therefore, was being neither neglected nor slighted. As to Lebanon, it has never been affirmed to me that there is in that country anything to be looked into concerning the treatment of its Jewish community and I know of no such problem.

19. Thus, I have not, in the course of the discussions concerning this mission, approached the Governments of Iraq and Lebanon on the question of accepting the mission and, for the same reasons, I am not complying with the request of the Minister for Foreign Affairs of Israel that the substance of his Government's position on the question of the mission be communicated by me to Iraq and Lebanon.

20. I may observe once again that a mission of the kind contemplated can fare best with general terms of reference. Once in operation, it is better able to do most of what needs to be done without too precise definition of its mandate. The more the issue of specific definition is pressed prior to the establishment of such a mission, the more limited its scope and function will likely be.

21. With regard to the purely legal aspects of the matter, involving particularly the interpretation of the resolutions as they apply to the scope and mandate of the projected second mission, brief comments on a few points will suffice:

(a) The full text of the first preambular paragraph of Security Council resolution 237 (1967) reads:

Obviously, the words "in the area of conflict" cannot be ignored in this context.

(b) Because of humanitarian considerations, and on the basis of sound legal advice, I gave the broadest possible interpretation to the provisions of the resolutions in defining the range and functioning of the Gussing mission. In this connexion, although it is not necessarily conclusive, it is not without significance that the records of the debates in the Security Council and the General Assembly on the two relevant resolutions disclose no reference to the possible inclusion of the Jewish communities in the Arab States as a concern of the resolutions. The records of the discussion preceding the adoption of the Security Council resolution demonstrate that it was concern for the inhabitants of the occupied areas or "of areas where military operations have taken place" that motivated that resolution.

(c) The preambular paragraphs of the resolutions were definitely taken into account in arriving at the broad and humanitarian interpretation given to them in order to enable the Gussing mission to inquire into the question of the Jewish minorities in Syria and the United Arab Republic. It bears emphasis here that this question arose only after Mr. Gussing had reached the area in pursuance of his mission. I advised Mr. Gussing that he might properly interpret his mandate "as having application to the treatment, at the time of the recent war and as a result of that war, of both Arab and Jewish persons in the States which are directly concerned because of their participation in that war". It was made clear to him at the time that this interpretation, which relied on broad humanitarian principles and not on a strictly legal interpretation of the resolution, was tenuous and might be subject to dispute.

(d) Since no military operations had taken place in Iraq and Lebanon and these countries were not encompassed in the area of conflict, I could not stretch my already liberal interpretation of the resolutions to include them.

(e) It is to be noted that the first preambular paragraph of Security Council resolution 237 (1967) does not say "in the territory of States parties to the conflict", but "in the area of conflict", which is a more limited geographic concept. The reference to "areas where military operations have taken place" in operative paragraph 1 of the Security Council resolution is even more explicit and, in the absence of anything in the resolution to the contrary, this phrase must be considered relevant to an interpretation of the term "Governments concerned" in the succeeding operative paragraph 2.

(f) While the Convention relative to the Protection of Civilian Persons in Time of War cannot be legally interpreted as being at present applicable to communities which are composed for the most part of citizens of the State within which they reside, stateless persons might be construed to be protected persons and, to the extent that their "release, repatriation or re-establishment may take place" after the general close of military operations, they would continue to be covered by certain provisions of the Convention. To the extent that such stateless persons were "in the area of conflict", they might be brought within a strictly legal interpretation of operative paragraph 2 of Security Council resolution 237 (1967).

(g) Concerning Part II of the Convention, it would seem clear, when it is taken as a whole, that its provisions, including articles 24 to 26 in particular, were designed to alleviate suffering caused by the actual fighting.

(h) With reference to the provisions of Section I of Part III of the Convention, which is entitled "Provisions common to the territory of the parties to the conflict and to occupied territories", it is necessary to note that these provisions are only applicable to protected persons.

22. The projected second mission, which has been the subject of this report, would be concerned exclusively with humanitarian matters. It is most unfortunate, in my view, that these considerations involving the well-being of a great many people, cannot be given sufficient priority and be regarded as having sufficient urgency to override obstacles such as those that have been encountered thus far.


__________________

* Also issued under the symbol A/7149.


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