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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 1 The Cold War Era (1945–89), 16 The Yom Kippur War—1973

François Dubuisson, Vaios Koutroulis

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 14 December 2019

Subject(s):
Self-defence — Precedent — International organizations — Armed forces

(p. 189) 16  The Yom Kippur War—1973

I.  Facts and Context

The Yom Kippur War,1 sometimes also referred to as the Fourth Arab-Israeli War2 or the October War,3 lasted from 6 to 24 October 1973 and opposed, on the one hand, Israel, and, on the other, Egypt and Syria joined by the armed forces of other Arab States.4 As this confrontation is directly linked to the 1967 Six Day War,5 in order to understand the reasons which led to the outbreak of hostilities in 1973, it is necessary to go back to the 1967 war and its aftermath.

The hostilities of the 1967 Six Day War ended with a ceasefire requested by UN Security Council Resolutions 233 and 234 of 6 and 7 June 1967 respectively and accepted by all parties to the conflict.6 At the end of the war, Israel occupied several Arab territories: Sinai (Egypt), Golan and Shebaa Farms (Syria/Lebanon), Gaza Strip (formally under Egyptian administration), West Bank, and East-Jerusalem (previously annexed by Jordan). On 22 November 1967, the UN Security Council (UNSC) adopted Resolution 242, which set down the principles for the establishment of an Arab–Israeli peace. Indeed, in the first paragraph of the resolution, the Council:

[a]ffirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

  1. (i)  Withdrawal of Israel armed forces from territories occupied in the recent conflict;

  2. (ii)  Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.

The English version of the resolution is ambiguous as to whether it imposes upon Israel the obligation to withdraw from all the occupied Arab territories or not.7 The Arab States claim that it does; Israel rejects this interpretation and claims that the ‘secure and recognized’ (p. 190) boundaries mentioned in the resolution have to be established by a peace agreement. These opposing views were made particularly clear during a mediation process led by Gunnar Jarring, the Special Representative on the Middle East, appointed by the UN Secretary-General U Thant in order to implement Resolution 242.8 The Secretary-General pointed to Israel’s refusal to commit ‘on withdrawal to the international boundary’ existing before the 1967 war as the main obstacle to the progress of the negotiations.9 Faced with this deadlock, the mediation effort was abandoned in 1972.10 In May 1973, the Secretary-General referred to the lack of progress in implementing Resolution 242, asserting that:

the maintenance of the cease-fire depends essentially on the willingness of the parties concerned to abide by it. But this in turn depends on the prospects of achieving a just and accepted settlement of the Middle East problem, and so long as such a settlement is not in sight the cease-fire will remain precarious and unstable.11

The ceasefire had indeed proven unstable ever since 1967. In a report on the situation in the Middle East dated 18 May 1973, the UN Secretary-General cited seventeen major incidents discussed at the UNSC, spanning from July 1967 to April 1973, which disrupted the ceasefire.12 On 24 July 1973, a draft resolution presented to the UNSC deplored ‘Israel’s continuing occupation of the territories occupied as a result of the 1967 conflict, contrary to the principles of the Charter’ and expressed ‘serious concern at Israel’s lack of co-operation with the Special Representative of the Secretary-General’.13 The draft resolution received thirteen votes in favour (China did not participate in the vote) but was vetoed by the United States.14

Following the failure of the Jarring mediation and the outcome of the vote at the Security Council, Egypt and Syria decided to take their territories back by force. On 6 October 1973, they launched a large-scale attack in the Golan, the Suez Canal Zone, and Sinai. Although both states claimed that Israel had started the hostilities,15 it seems that (p. 191) the ceasefire lines were first crossed by the Egyptian and Syrian armies. Indeed, according to the report by the United Nations Truce Supervision Organization (UNTSO):

Egyptian and Syrian armies launched a sudden surprise attack. On the Syrian front, 40,000 soldiers supported by 850 tanks broke into the Golan Heights while Syrian jets bombed Israeli settlements in the Huleh Valley. Egyptian forces crossed the Suez Canal under cover of artillery and tank fire, while Egyptian airplanes bombed Israeli installations in Sinai.16

Jordan, Morocco, Iraq, and Saudi Arabia reportedly helped Egypt and Syria by sending army units.17 Israel was taken aback by the simultaneous surprise attack, and the two countries initially succeeded in taking back much of the occupied territories. However, Israel conducted successful counter-attacks on both fronts; heavy fighting ensued, and by the end of the hostilities Israel managed to recapture the contested territories.18 The official figures of Israeli casualties, issued by the Israeli General Staff on 6 November 1973, report that 1,854 members of the armed forces were killed in action and 1,850 were wounded. No official figures were given by Egypt and Syria.19 In the end of October 1973, Israel communicated to the International Committee of the Red Cross the names of over 5,800 enemy military personnel held as prisoners of war (5,467 Egyptians, 368 Syrians, seventeen Iraqis, and four Moroccans) and by mid-November 1973 Egypt did the same for 441 Israeli prisoners of war.20

Several meetings were held at the UNSC with respect to the hostilities of the Yom Kippur war, on 8, 9, 11, and 12 October 1973 but to no avail.21 After a series of informal consultations, including a meeting in Moscow between the US Secretary of State Henry Kissinger, the USSR leader Leonid Brezhnev, and the USSR Minister of Foreign Affairs Andreï Gromyko, the two states jointly presented a draft resolution on the situation in the Middle East which was adopted on 22 October 1973 with fourteen votes in favour (China refused once again to participate in the voting).22 In this resolution, the Council:

Calls upon all parties to the present fighting to cease all firing and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of this decision, in the positions they now occupy;

Calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council resolution 242 (1967) in all of its parts.23

Although the call for a ceasefire was accepted by both Israel and Egypt, fighting continued on 23 October 1973 on the Suez front, each state accusing the other for the new outbreak of hostilities.24 This brought about the adoption of two new resolutions by the UNSC, Resolutions 339 and 340 (1973),25 confirming and reiterating the Council’s ‘decision on an (p. 192) immediate cessation of all kinds of firing and of all military action’26 and demanding ‘that immediate and complete cease-fire be observed and that the parties return to the positions occupied by them at 1650 hours GMT on 22 October 1973’.27 Resolution 340 also set up a United Nations Emergency Force in order to ensure compliance with the ceasefire.28 The force was set up immediately and by the end of October 1973 the ceasefire became effective.

II.  The Positions of the Main Protagonists and the Reactions of Third States and International Organizations

As it will be shown in this section, the arguments invoked both by the states directly involved in the fighting (1) and by third states and other actors (2) refer to the whole history of the Arab–Israeli conflict dating back to 1948. Thus, the positions advanced with respect to the ‘Yom Kippour’ incident are ‘contaminated’ by references to the general context of the Arab–Israeli conflict making it difficult to establish with precision the legal arguments regarding specifically the hostilities of October 1973. The analysis of the various positions is further complicated by the uncertainty surrounding the facts on the ground, resulting in the states involved accusing each other of conducting certain attacks. Discussions were heated and the language used was in some cases extreme.29

1.  Position of the main protagonists

The states directly concerned accused each other of aggression and violations of the existing ceasefire. The first claim put forth by the Arab States was that it was Israel that had launched attacks beyond the ceasefire line. Thus, in a letter to the President of the Security Council dated 6 October 1973, Syria asserted that Israeli armed forces had ‘launched military aggression against Syrian forward positions all along the cease-fire line’, penetrating Syrian airspace, obliging Syrian armed forces ‘to return the fire’.30 This letter contains no mention either of Article 51 of the UN Charter or, more generally, of the right to self-defence.31 As for Egypt, a letter was sent not to the UNSC but to the General Assembly, accusing Israel of committing an ‘act of aggression’ by attacking Egyptian forces and affirming that Egypt was ‘exercising its legitimate right of self-defence’.32 In a letter to the UN Secretary-General, Israel rejected these claims, accused Egypt and Syria of launching an aggression, and also invoked its right to self-defence, without explicitly referring to Article 51 of the UN Charter.33

(p. 193) In connection to this argument, Israel claimed that the attacking Arab States violated pre-existing ceasefire agreements still in force, namely the one put in place following a request to this effect by the UNSC in Resolutions 233 and 235 as well as the ceasefire agreement concluded between Israel and Egypt in the summer of 1970.34 Both Egypt and Syria were adamant in rejecting the argument that their resort to force was in violation of a pre-existing ceasefire agreement. Syria asserted that Israel’s repeated violations of the agreement precluded it from invoking the agreement.35 Egypt claimed that the 1970 agreement was no longer in force and that the 1967 agreement could not be interpreted as being applicable indefinitely since this would mean that the occupation of Arab territories would be unlimited:

The theory that the cease-fire was in effect this October really needs some queries. … [T]he August 1970 United States-initiated cease-fire was for 90 days. I think [Israel] knows very well that it was extended several times and then ended and that there is no United States-initiated cease-fire. … Regarding the Security Council cease-fire in June 1967, it is closely linked with withdrawal from occupied territories. The strange theory that this or any cease-fire is for an unlimited time obviously means that the occupation is unlimited. Should we accept that the cease-fire must be observed until both parties—the occupier and the occupied —agree to put an end to it, then we would accept that the occupying Power can be evacuated only by its own consent. … To conclude, I wish also to remind Mr. Eban or anyone around this table that the war started on 5 June 1967. I am sure the Secretary-General did not say in his letter that the war started in October. If he did, I would certainly ask him to correct that. The war started in June 1967, and an end to the war is an end to the war which started in June 1967.36

As it is obvious from this reply, the discussion on the ceasefire agreement opens the door to the general context of the Arab–Israeli war. Indeed, the main bulk of the statements by Arab States revolved around the June 1967 war, the dispute relating to the interpretation of Resolution 242, the continuing occupation of their territories, the numerous incidents of resort to force between 1967 and 1973, the failure of the mediation efforts, and the US veto blocking the adoption of the resolution in July 1973.37 In view of all the above, Egypt and Syria’s actions were presented as aiming at the liberation of occupied national territory and as being justified by resorting to the right to self-defence against an ongoing act of aggression, that is, the occupation of their territories by Israel:

The exercise of our right of self-defence is labelled aggression committed by Egypt and Syria. The representative of Israel has been hammering away on that point and constantly repeats it, imagining that he will be believed. Egypt and Syria are defending themselves. We are not in (p. 194) Israeli territory; we are on our territory, our national territory. I should like to say to the representative of Israel that we shall defend our territory with all our force and strength.38

Syria also defended the legality of the Arab States’ resort to force under international law, albeit in general terms:

Israel cannot call for the return to positions occupied before 6 October because such positions happen to be in our national territory. And the fight we are waging now, and which was provoked by the Israeli attack, cannot be qualified as anything other than a national liberation fight, which is in conformity with the principles of the United Nations and in accordance with the norms of international law.39

Naturally, Israel reacted along the same lines, also resorting to general context, insisting that the Arab States’ interpretation of Resolution 242 was incorrect in view of Israel’s right to live in peace within ‘secure and recognized boundaries’ and arguing that it had been a victim of aggression by Egypt since 1948.40

2.  Positions of third states and international organizations

Members of the Non-Aligned Movement as well as states belonging to the communist bloc sided with the Arab States, viewing resort to force on their behalf as an attempt to liberate national occupied territory and restore their territorial integrity.41 However, in the majority of cases, the relevant remarks were not formulated in clear legal terms and were limited to general references to Israel as the ‘aggressor’ who has been occupying Arab territories for six years. For example, China expressed its support for the actions by Arab States against Israel in the following manner:

If the Security Council is to adopt any resolution at all, it must condemn all the acts of aggression by the Israeli Zionists in the strongest terms, give the firmest support to the Egyptian, Syrian and Palestinian peoples in the just action they are taking to resist the aggressors, demand the immediate withdrawal of the Israeli Zionists from all the Arab territories they have occupied and explicitly provide for the restoration of the national rights of the Palestinian people.42

(p. 195) In very few occasions, specific reference was made to the exercise of the right of self-defence by the Arab States with respect to the occupation of their territories by Israel:

Consistently supporting the search for a peaceful, political settlement in the Middle East on the basis of the well-known decisions of the Security Council and the General Assembly, the Soviet Union, in full conformity with the principles of the Charter, has always considered and still considers that, faced with Israel’s stubborn refusal to accept a just political settlement in the Middle East, the Arab States are fully entitled to fight for the liberation of their occupied territories. They are so entitled under Article 51 of the Charter, which establishes the inalienable right of States Members of the United Nations to self-defence in the event of aggression.43

Another State which explicitly mentioned the Arab States’ right to self-defence is India, according to which:

What Egypt and Syria are doing now is nothing more than upholding the provisions of the Charter in asserting their right to self-defence and to territorial integrity. This right is inherent to every sovereign State, and if Egypt and Syria have desisted from exercising this right it was because they had hoped that the Council would find a peaceful solution.44

Other states remained neutral and did not express any views on the legal arguments put forth by the parties. They insisted that this incident was but another episode in the saga of the Arab–Israeli conflict and that only a definitive peace settlement would bring peace in the region.45 These remarks remained focused on the political aspect of the conflict and cannot be used to deduce the legal views of the relevant states.

Finally, it should be noted that, while a substantial number of states supported Egypt and Syria, no state explicitly endorsed either Israel’s invocation of the right to self-defence or its claim that action by the Arab States constituted a violation of the ceasefire agreements.

III.  Questions of Legality

Legal scholarship analysing specifically the Yom Kippur war is very limited. Indeed, this ‘war’ is usually absorbed by the general Arab–Israeli conflict—of which, as we have seen, (p. 196) it forms an essential part—rather than be treated as a distinct incident of resort to force with respect to which specific justifications need to be advanced.

The close link between the Yom Kippur war and the Arab–Israeli conflict is clear in the arguments put forth by the few scholars who dealt with the legality of the resort to force in October 1973. Indeed, the central piece of this legal puzzle lies with the legality of the occupation of the Arab territories controlled by Israel after the June 1967 hostilities. Thus, Eugene Rostow, a Professor of Yale University who had worked as the US Under Secretary of State from 1966 to 1969, argues that the Arab States’ attack against Israel in October 1973 was illegal by defending the legality of Israel’s occupation. The main argument in this respect bears on Resolution 242. Rostow claims that, by virtue of this resolution,

Israel is legally entitled to remain on the cease-fire lines of 1967 as the occupying power until the parties themselves reach an agreement of peace in conformity with the principles and provisions of Resolution 242. … The legality and legitimacy of its presence as occupying power is thus certified by the Security Council. That right is fully protected by the law of Article 2(4), which the General Assembly attempted to summarize and restate in its Declaration on Principles of International law concerning Friendly Relations and Co-operation among States.46

The author continues by citing two paragraphs of the Friendly Relations Declaration, namely the ones bearing on the duty to refrain from the threat or use of force ‘as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’ and ‘to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which [a State] is a party or which it is otherwise bound to respect’.47 The legal analysis thus focuses on the interpretation of Resolution 242 and the question of whether Israel has an obligation to withdraw from all the occupied territories or not. Unsurprisingly, Rostow follows Israel’s and US’s interpretation and claims that it does not.48

The opposite view is taken by Ibrahim Shihata, a legal adviser working for the Kuwait Fund for Arab Economic Development, who defends the legality of the Arab States’ resort to force in October 1973.49 As was the case with the previous scholar, the core issue lies with the legality of Israel’s occupation of the Arab territories since 1967. Shihata argues that this occupation is illegal by adopting diametrically opposite interpretations to the ones suggested by Rostow. The illegal character of Israel’s occupation may justify Egypt and Syria’s resort to force in October 1973 in two ways. The first, which is explicitly stated, is that this resort to force essentially constitutes ‘[g]overnmental action taken by a state within its territory for the restoration of legal order disrupted by unauthorized acts of others [which] certainly falls within the inherent territorial jurisdiction of each sovereign state’.50 Thus, the prohibition to use force and Article 2(4) may not even be relevant in such cases. The second, which is not explicitly endorsed by the author although it remains implicit in his analysis, is that Israel’s continuing occupation of the Golan Heights and the (p. 197) Sinai constitutes an armed attack, giving the right to Egypt and Syria to resort to force in self-defence.51

Both lines of argument echo the legal positions usually advanced by states in cases of resort to force in order to liberate territories that are considered to be occupied by a foreign power.52 The argument rejecting the application of Article 2(4) to the Yom Kippur war is not confirmed by the positions of states advanced in this context. Indeed, no state made any remarks claiming that Egypt and Syria were merely exercising their sovereign rights when they attacked Israel’s occupying forces. On the contrary, if any legal significance is to be given to the general references to Israel as an ‘aggressor’ and the few mentions of the Arab States’ right to self-defence, they seem to point to the second line of argument, namely the justification of Egypt and Syria’s resort to force as an exercise of their right to self-defence against a continuing armed attack by Israel, materialized by the continuing occupation of these states’ territories. Thus, the legality of Egypt and Syria’s operations is intimately linked to the legality of Israel’s occupation.

In this respect, it is interesting to note that, as it was previously stated, Israel justified its continuous occupation of the Arab territories by invoking Resolution 242 and the ceasefire agreements and not by relying exclusively on its right to self-defence against what it considered to be an aggression by the Arab States in 1967. This position was also followed by the author defending the legality of Israel’s occupation.53 Indeed, in view of the relevant facts and irrespective of the view one may have about the 1967 war, it would be difficult to conclude that the continuing Israeli occupation meets the conditions of necessity and proportionality inherent to the exercise of the right to self-defence. As for the invocation of Resolution 242, Israel’s position was not explicitly endorsed by any of the states intervening before the UNSC, not even by the United States. This silence seems to be the consequence of the rejection by the overwhelming majority of states of Israel’s interpretation of the resolution.54

In view of the above, it is our view that the conditions of self-defence by the Arab States were met in this case:

  • •  military occupation constitutes an armed attack (see Article 3(a) of Resolution 3314), because neither Resolution 242 nor the right to self-defence can be invoked as a legal basis for Israel’s continuous occupation;55 as for the argument relating to the violation of the ceasefire agreements, in view of the numerous violations reported previous to the Yom Kippur incident and along what Syria and Egypt have argued,56 it is doubtful that these agreements could still be considered as being in force;

  • (p. 198) •  the reaction by Arab States can be considered as necessary since other options had failed, the UNSC had not exercised its responsibilities, and the facts on the ground made any withdrawal complicated;

  • •  as for proportionality, the attacks by Arab forces were mainly limited to the occupied Arab territories (Sinai and Golan).

Since there can be no self-defence against self-defence,57 the consequence of this analysis is that Israel violated Article 2(4) of the UN Charter with respect to the Yom Kippur war.

IV.  Conclusion: Precedential Value

Aside from the abovementioned remarks, and as was stated above, it is difficult to appreciate the value of this incident in interpreting the rules relating to the use of force both because of the general terms in which the adopted positions were phrased and, most importantly, because it is rather fictitious to isolate the Yom Kippur incident from the rest of the Arab–Israeli conflict and to view it as an independent precedent of resort to force. However, three main points can be made with respect to the arguments advanced in relation to this incident.

The first point concerns the argument according to which Egypt and Syria’s operations against Israel should be viewed as an exercise of their sovereign rights instead of a resort to force regulated by Article 2(4) of the UN Charter. This view has been reiterated in other similar cases. For example, in the 1982 conflict between Argentina and the United Kingdom over the Falklands/Malvinas islands, speaking in favour of Argentina’s intervention, Panama rejected the classification of the incident as ‘a breach of peace’ in the following terms:

[i]t has been suggested here … that Argentina is invading the Malvinas Islands. That is not true. A State cannot invade its own territory. The Malvinas Islands are Argentine territory. Thus this situation cannot be presented as one of invasion: rather, it is a situation in which Argentina is exercising its sovereign rights.58

However, as it was stated above, in our case, this argument was only raised by legal scholarship not by the states themselves. Thus, the Yom Kippur incident cannot be invoked as a precedent giving support to the argument, which, incidentally, has not found much support in international practice in general.59

(p. 199) The second point relates to our conclusion according to which, being the victims of a continuing unlawful occupation of parts of their territory by Israel, Egypt, and Syria may validly invoke their right to self-defence as a legal basis for their October 1973 attack. Even though this assertion appears to be the logical consequence of the unlawful character of Israel’s occupation as a result of the 1967 war, recent international case law seems to adopt a more nuanced approach. Indeed, the issue came up before the Eritrea–Ethiopia Claims Commission with respect to Ethiopia’s allegedly unlawful occupation of Badme and Eritrea’s resort to force in order to reclaim Badme which it considered to be Eritrean territory, a claim which was confirmed by a Boundary Commission established by peace agreement between the two states.60 Despite the confirmation of Eritrea’s sovereignty over Badme, the Claims Commission concluded that Eritrea had committed an armed attack in violation of Article 2(4) of the UN Charter ‘by resorting to armed force on May 12, 1998 and the immediately following days to attack and occupy the town of Badme, then under peaceful administration by [Ethiopia] as well as other [Ethiopian] territory’.61 Most importantly for our purposes, it rejected the argument relating to Ethiopia’s unlawful occupation of Eritrean territory by asserting that self-defence cannot be invoked to settle territorial disputes.62

Does the Yom Kippur incident contradict this analysis? We do not think so. Contrary to the situation in Badme, in this case there are neither genuine competing territorial claims over the disputed territories (Israel did not lay any sovereignty claims over the Golan Heights or the Sinai) nor a peaceful administration of these territories by the occupying power. Indeed, in view of all the incidents of resort to force reported between 1967 and 1973,63 it can hardly be suggested that the occupied Arab territories were under the peaceful administration of Israel.

Finally, according to some scholars, ceasefire violations may give rise to a new armed attack and thus a new exercise of the right to self-defence.64 Other scholars have contested this interpretation.65 As it has been previously stated, a similar argument was raised in the context of the Yom Kippur incident66 and was—rightly in our view—rejected in the discussions relating to the hostilities. It should however be recalled that this rejection was based on the fact that the ceasefire agreements in the present case were not considered as being in force due to numerous violations.67 Therefore, here as well, the Yom Kippur incident does not have any precedential value in support of either side of the scholarly debate mentioned above.

Aside from these brief points, if there is a conclusion to be drawn from this case, it concerns the harmful consequences of adopting an ambiguous resolution (Resolution 242), which indefinitely prolongs a conflict by leaving essential questions unanswered and open to various interpretations.68 The consequences of this ambiguity are still felt today. (p. 200) Aside from Sinai (which was dealt with by the Camp David agreements), with respect to the other territories, Israel maintains its interpretation of Resolution 242 and still claims that it does not have to withdraw from them completely: Golan was annexed in 1981, the Shebaa Farms are still occupied even after Israel’s withdrawal from South Lebanon in 2000, East-Jerusalem is annexed, occupation and colonization continues in the West Bank. In this respect, the remarks Indonesia made before the Security Council remain relevant today:

Members have referred to resolution 242 (1967) as the basis for finding a solution to the Middle East problem. My delegation agrees with that view. However, when the Council adopted resolution 242 (1967), in its wisdom it left the provisions of that resolution open to contradictory interpretations, a priori dooming to failure efforts for their implementation. It seems to my delegation that adherence to resolution 242 (1967) alone will not help us towards a solution of the Middle East conflict, as has been proved by the failure of all efforts during the last six years. If resolution 242 (1967) has to be the basis of the search for a solution, the Council has to agree on one and the same interpretation in order to be able to implement its provisions effectively. Otherwise it will be just another excuse to continue the impasse, to perpetuate the situation of ‘no war and no peace’ in which Israel can consolidate its position in the occupied Arab territories and continue its policy of integrating those territories into Israel, with all the dangers inherent in such a state of affairs. The outbreak of hostilities with which the Council is now faced is sufficient proof that these dangers are not imaginary.69

Footnotes:

1  Named so ‘because it started on the holiest day in the Jewish calendar, the Day of Atonement’ (6 October 1973)’, in Netanel Lorch, ‘The Arab-Israeli Wars’, Israel Ministry of Foreign Affairs <http://mfa.gov.il/MFA/AboutIsrael/History/Pages/The%20Arab-Israeli%20Wars.aspx> accessed 2 April 2017.

2  Martin Wählish, ‘Peace Settlements and the Prohibition of the Use of Force’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (OUP 2015) 979.

3  See, eg, Asaf Siniver (ed), The October 1973 War: Politics, Diplomacy, Legacy (Hurst & Company 2012).

4  ‘Middle East—The Fourth Arab-Israeli War’ (1973) XIX Keesing’s Contemporary Archives 26173ff.

5  See Chapter 12, ‘The Six Day War – 1967’ by John Quigley in this volume.

6  UNSC Res 233 (6 June 1967) UN Doc S/RES/233; UNSC Res 234 (7 June 1967) UN Doc S/RES/234. See also Report of the Secretary-General under Security Council Resolution 331 (1973) of 20 April 1973 (18 May 1973) UN Doc S/10929, [3]–[4].

7  The French text of the resolution is clearer. It refers to the ‘retrait des forces armées israéliennes des territoires occupés au cours du récent conflit’. This version suggests that Israel has to withdraw from all the occupied territories.

8  Further: Report by the Secretary-General on the activities of the Special Representative to the Middle East (5 March 1971) UN Doc S/10070/Add.2 [4]–[5].

9  ibid [12], [14]–[15]. For Israel’s position see Communication presented to Ambassador Jarring by Israel on 26 February 1971, Report by the Secretary-General on the activities of the Special Representative to the Middle East (30 November 1971) UN Doc S/10403, Annex III. On 25 July 1973, in a speech at the Knesset, the Israeli Prime Minister Golda Meir confirmed that the colonization of the conquered Arab territories continued and that there would be no return to the 1949 armistice line, see ‘Statement to the Knesset by the Prime Minister’ (25 July 1973), Israel Ministry of Foreign Affairs, <http://mfa.gov.il/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/42%20Statement%20to%20the%20Knesset%20by%20the%20Prime%20Minister-.aspx> accessed 2 April 2017.

10  Report by the Secretary-General on the activities of the Special Representative to the Middle East (15 September 1972) UN Doc S/10792.

11  Report of the Secretary-General under Security Council Resolution 331 (1973) of 20 April 1973 (18 May 1973) UN Doc S/10929 [13].

12  ibid [10]. These incidents involved mainly complaints by the United Arab Republic, Jordan, and Lebanon concerning attacks conducted by Israel’s armed forces against targets inside their territory and claims on behalf of Israel that the targeted states violated the ceasefire either by conducting direct attacks or, in most cases, by allowing their territory to be used by irregular groups in order to launch attacks against Israel.

13  Draft Resolution (24 July 1973) UN Doc S/10974. For discussions on this draft resolution see UNSC Verbatim Record (25 July 1973) UN Doc S/PV.1734 and UNSC Verbatim Record (26 July 1973) UN Doc S/PV.1735.

14  UNSC Verbatim Record (26 July 1973) UN Doc S/PV.1735, 10. Taking the floor after the vote, the Chinese delegation affirmed that the resolution should have condemned Israel’s ‘prolonged aggression against the Palestinian people and other Arab countries and peoples’ and asked ‘the Israeli authorities immediately to withdraw from the Egyptian, Syrian and all the other Arab territories they have occupied’. The Chinese decision not to participate in the vote was explained by the fact that the draft resolution did not ‘reflect fully the principles of the United Nations Charter and the aforesaid position of the Chinese Government’, in ibid.

15  Letter dated 6 October 1973 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the President of the Security Council (6 October 1973), UN Doc S/11009; Letter dated 6 October 1973 from the Minister for Foreign Affairs of Egypt to the President of the General Assembly (6 October 1973), UN Doc A/9190; ‘Middle East’ (n 4) 26173. The USSR seems to have also taken up these allegations; Letter dated 7 October 1973 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations addressed to the Secretary General (7 October 1973) UN Doc A/9205- S/11012.

16  UNTSO Reports on Outbreak of Hostilities (6 October 1973) UN Doc S/7930/Add. 2141, 2142.

17  ‘Middle East’ (n 4) 26173, 26175.

18  ibid 26173–76.

19  ibid 26176.

20  ibid 26203.

21  UNSC Verbatim Record (8 October 1973) UN Doc S/PV.1743; UNSC Verbatim Record (9 October 1973) UN Doc S/PV.1744; UNSC Verbatim Record (11 October 1973) UN Doc S/PV.1745; UNSC Verbatim Record (12 October 1973) UN Doc S/PV.1746.

22  UNSC Verbatim Record (21–22 October 1973) UN Doc S/PV.1747, 15.

23  UNSC Res 338 (22 October 1973) UN Doc S/RES/338.

24  ‘Middle East’ (n 4) 26198.

25  UNSC Res 339 (23 October 1973) UN Doc S/RES/339 (14 votes in favour); UNSC Res 340 (25 October 1973) UN Doc S/RES 340 (14 votes in favour); China did not participate in either voting.

26  UNSC Res 339 (n 25) [1].

27  UNSC Res 340 (n 25) [1].

28  ibid [3].

29  See, eg, the parallels with the Nazi regime made by several states during the meeting held on 11 October 1973; UN Doc S/PV.1745 (n 21).

30  Letter dated 6 October 1973 from the Permanent Representative of the Syrian Arab Republic (n 15). See also UN Doc S/PV.1744 (n 21) [45].

31  Syria referred to the exercise of its right to self-defence during the discussions at the UN Security Council: ‘I wish to affirm that we are unshakably attached to the principles of freedom and peace based on justice. We are at present fighting to repel the aggressor, we are exercising our right of self-defence. We do not wish to bring death to anyone. We are seeking to prevent the aggressor from sowing death and destruction in our land’ in UN Doc S/PV.1744 (n 21) [82]. Although the statement is not clear, its context indicates that the ‘right to self-defence’ is invoked by Syria in relation to Israel’s ‘new aggression against the victims of aggression of 1967’ (ibid [81]) rather than in relation to the general Arab–Israeli conflict.

32  Letter dated 6 October 1973 from the Minister for Foreign Affairs of Egypt (n 15) [1] and [7].

33  Letter dated 7 October 1973 from the Minister for Foreign Affairs of Israel to the Secretary-General (7 October 1973) UN Doc A/9204–S/11011. For the rejection of Egypt’s account of the facts, see also, UN Doc S/PV.1743 (n 21) [61]. For qualifying the Yom Kippur war as an act of aggression (without invoking Article 51 and the right to self-defence under international law), see, eg, UN Doc S/PV.1747 (n 22) [81], [83], [88]. In the last paragraph, the representative of Israel refers to his state’s ‘struggle of self-defence’.

34  Statement to the General Assembly by Foreign Minister Eban, UNGA Verbatim Record (8 October 1973) UN Doc A/PV.2143 [13]: ‘Let there be no doubt that this attempt to smash the cease-fire structure is a massive violation of international law. The cease-fire is an international agreement. It was accepted by Egypt, Syria and Israel, in response to a decision of the Security Council, in which all three Governments concurred’.

35  UN Doc S/PV.1744 (n 21) [67], [69]: ‘Since 1967 Israel has on numerous occasions violated the cease-fire with impunity … It has adopted and practiced State terrorism; it has raised mafia techniques to the rank of official policy practiced by a State member of the United Nations. The list of operations which Israel has fallaciously and cynically called “preventive” is very long. All these operations constitute grave and flagrant violations of the cease-fire … That … is why Israel has no valid right to draw attention to the alleged failure to comply with the cease-fire’.

36  UN Doc S/PV.1745 (n 21) [45]–[48] (Egypt).

37  See UN Doc S/PV.1743 (n 21) [36]–[37] (Egypt) and UN Doc S/PV.1746 (n 21) [54] (Egypt); UN Doc S/PV.1744 (n 21) [47]–[62] (Syria).

38  UN Doc S/PV.1745 (n 21) [190] (Egypt).

39  UN Doc S/PV.1744 (n 21) [73] (Syria).

40  See, UN Doc S/PV.1745 (n 21) [182]; UN Doc S/PV.1746 (n 21) [64]. Israel had invoked this argument even before the war in October 1973; see UN Doc S/PV.1735 (n 13) [172]–[173].

41  See, eg, UN Doc S/PV.1744 (n 21) [166] (Indonesia): ‘Indonesia’s position, however, is clear, and has been clear since the very beginning of the Middle East conflict. We have said on many occasions that we support the efforts of the Arab countries to regain their territories occupied by Israel since the war of June 1967. We have always maintained that peace can only return to the Middle East if those territories are returned to their lawful owners, and if the rights of the Palestinians who have been chased away from their homeland are respected. We have also contended that it cannot be expected that the Arab countries will acquiesce in the continued occupation of their territories by Israel’; UN Doc S/PV.1746 (n 21) [7] (Nigeria); ibid [19] (Kenya): ‘This war has resulted from the hitherto frustrating non-implementation of resolution 242 (1967), which Kenya still believes remains a valid basis for negotiations among the parties. The sole question in the non-implementation of that resolution is the continued occupation of Arab territories by Israel as a result of the June 1967 war. Occupation of territories resulting from conquest in war is, of course, contrary to the Charter of the United Nations and international law. It is a fact that those whose lands are occupied cannot permanently accept that’; ibid [177] (India); UN Doc S/PV.1744 (n 21) [199] (Sudan); UN Doc S/PV.1745 (n 21) [34]–[38] (Guinea); ibid [54]–[58] (Peru).

42  UN Doc S/PV.1743 (n 21) [57]. The non-aligned countries adopted a similar view: ‘The heads of the delegations of the non-aligned countries … condemn Israel’s aggression against Egypt and Syria and express to those two countries their full support for their just struggle and their heroic efforts to liberate their occupied territories. Recalling the resolution on the Middle East adopted by the Algiers summit conference, they demand the withdrawal of Israel from all the occupied Arab territories as a prerequisite for any search for a solution to the Middle East crisis’; Letter dated 10 October 1973 from the Permanent Representative of Algeria to the United Nations addressed to the Secretary-General (10 October 1973) S/11019. See also UN Doc S/PV.1743 (n 21) [76] (USSR); UN Doc S/PV.1745 (n 21) [34]–[38] (Guinea).

43  UN Doc S/PV.1745 (n 21) [159]. See also UN Doc S/PV.1746 (n 21) [34].

44  UN Doc S/PV.1744 (n 21) [179]. See also ibid [16] (Yugoslavia): ‘In the present situation the Arab countries and the Arab people of Palestine are resisting the aggressor on the basis of their legitimate right to self-defence, liberation of their occupied territories, and self-determination—in conformity with the Charter of the United Nations.’

45  See, eg, the following Statement made by the United States, UN Doc S/PV.1743 (n 21) [13]: ‘We recognize that it is difficult to separate proximate from underlying causes. The former may be clearcut, but the latter are complex, and perceptions of right and wrong inevitably vary. It has been over six years since the present abnormal situation was created in the wake of the 1967 Arab-Israeli war. That war in turn followed 18 years of abnormal armistice. For the failure to move from abnormal armistice and cease-fire to political accommodation and peace there is more than enough blame to go around. All concerned have missed opportunities to make the transition over the past 25 years.’ Along the same lines, France noted that ‘[t]he latest events in this situation, however spectacular, constitute but a new phase in this confrontation. Has not the time come for us to attack the roots of the ill and in good faith seek the means to overcome this kind of inevitability? But to this end the Council must not confine itself to examining present events. It must, on the contrary, try to promote the quest for a solution that will cover every facet of the problem. This quest for a solution has been spoken of for a very long time and the parties to the dispute have declared themselves to be in favour of it. But, so far, every attempt made to start the quest for a solution has been sealed by failure. There is more or less general agreement on the principles contained in resolution 242 (1967), but there is no agreement on their implementation. The fact of occupation, because it creates relationships of inequality, constitutes the major obstacle’; UN Doc S/PV.1744 (n 21) [31] (France). See also UN Doc S/PV.1747 (n 22) [58] (United Kingdom); UN Doc S/PV.1746 (n 21) [29] (Australia).

46  Eugene V Rostow, ‘The Illegality of the Arab Attack on Israel of October 6, 1973’ (1974) 69 American Journal of International Law 276–7.

47  Declaration on Principles of International law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/25/2625.

48  Rostow (n 46) 282ff.

49  Ibrahim FI Shihata, ‘Destination Embargo of Arab Oil: Its Legality Under International Law’ (1974) 69 American Journal of International Law 591–627; Ibrahim FI Shihata, ‘The Territorial Question and the October War’ (1974) 4 Journal of Palestine Studies 43–54.

51  Shihata, ‘Destination Embargo of Arab Oil: Its Legality Under International Law’ (n 49) 608 (note 86); Shihata, ‘The Territorial Question and the October War’ (n 49) 54 (note 52).

52  See Pierre Klein and Vaios Koutroulis, ‘Territorial Disputes and the Use of Force’ in Marcelo Kohen and Mamadou Hebie (eds), Research Handbook on Territorial Disputes in International Law (Edward Edgar Publishing Ltd 2018) (forthcoming).

53  Despite asserting that Israel’s occupation of the Arab territories following the June 1967 hostilities was done in the exercise of Israel’s right to self-defence, Rostow does not explicitly state that self-defence could be the sole legal foundation of the legality of Israel’s presence in the occupied territories in 1973; Rostow (n 46) 273 (note 3).

54  This position was already expressed by a large majority of states during the discussions on the adoption of Resolution 242 (UNSC Verbatim Record (22 November 1967) UN Doc S/PV.1382), and was reiterated in the debates concerning draft Resolution of 24 July 1973 (UN Doc S/10974) (UN Doc S/PV.1734 and UN Doc S/PV.1735, both above (n 13)).

55  See John Quigley, The Six-Day War and Israeli Self-Defense (CUP 2013).

56  See above nn 35–36.

57  See Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2011) 190; Terry D Gill, ‘The Temporal Dimension of Self-Defense: Anticipation, Pre-emption, Prevention and Immediacy’ in Michael Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein (Martinus Nijhoff Publishers 2007) 117.

58  UNSC Verbatim Record (3 April 1982) UN Doc S/PV.2350 [106]. See also ibid [152] (Paraguay). A similar argument was invoked by India, with respect to its attack against the Portuguese enclave of Goa, in December 1961: ‘I have already said that this is a colonial question, in the sense that part of our country is illegally occupied by right of conquest by the Portuguese … I would like to put this matter very clearly before the Council: that Portugal has no sovereign right over this territory. There is no legal frontier —there can be no legal frontier—between India and Goa. And since the whole occupation is illegal as an issue—it started in an illegal manner, it continues to be illegal today and it is even more illegal in light of resolution 1514(XV)—there can be no question of aggression against your own frontier, or against your own people, whom you want to liberate … These are the circumstances in which we had to have recourse to armed action, and this armed action is not an invasion. It cannot be an invasion because there cannot be an invasion of one’s own country’; UNSC Verbatim Record (18 December 1961) UN Doc S/PV.987 [46] and UNSC Verbatim Record (18 December 1961) UN Doc S/PV.988 [78] (India).

59  Klein and Koutroulis (n 52).

60  Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (Algiers, 5 December 2000) 2138 UNTS 94, Articles 4 and 5, at 97.

61  Eritrea Ethiopia Claims Commission (EECC), Jus Ad Bellum: Ethiopia’s Claims 1–8, Partial Award, 19 December 2005, XXVI Reports of International Arbitral Awards 469 [B1] of the operative part of the award. See also ibid, 468 [19]. For a critical analysis of the Commission’s findings on jus ad bellum, see Christine Gray, ‘The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award?’ (2006) 17 European Journal of International Law 710–12.

62  EECC, Jus Ad Bellum: Ethiopia’s Claims 1–8, Partial Award (n 61) 465 [10].

63  See n 12.

64  Olivier Corten and Anne Lagerwall, ‘La violation d’un cessez-le-feu constitue-t-elle nécessairement une violation de l’article 2 § 4 de la Charte des Nations Unies?’ (2008) 61 Revue hellénique de droit international 118ff.

65  Dinstein (n 57) 61.

66  See n 34 and n 47.

67  See nn 35–36.

68  On this issue, see John McHugo, ‘Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians’ (2002) 51 International and Comparative Law Quarterly 851.

69  UN Doc S/PV.1744 (n 21) [169].