It seems that the doctrine of intermediacy is gaining more support from writers who address themselves to the problems of the contemporary world. For example, von Glahn writes: The concept of intermediacy is an intriguing one--it possesses Looking at the problem from the standpoint of Communist approach to "war" James D. Atkinson argues that in order to impose their system upon the rest of the world, not directly through military force but indirectly through unconventional means of coercion, the Communists "have conjoined both war and peace so that all of man's activities...are harnessed to Marxist-Leninist cannons that delineate precisely what a totally new world ought to be on every plane." He concludes that the Communists "are engaged in a conflict of civilizations that is of such magnitude that it #18 should be called polyreconism, the fusion of war and peace. A majority of the writers and particularly those who reject the concept of the state of intermediacy19 seem to overemphasize the importance of abstract principles and formal rules of traditional international 17 von Glahn, op. cit., p. 533; see also Wolfgan Friedmann, The Changing Structure of International Law (New York: Columbia University Press, 1964), p. 271, where the author states: "The legal consequences of such a state of intermediacy are far from clear, but it is arguable that they would, for example, include limited restrictions on the freedom of the seas hitherto recognized only in war but falling short of full-scale blockade. It might also lead to more elaborate sets of rules on intervention and counter-measures intermediate between war and peace. 18 Atkinson, op. cit., p. 275. 19For example, one writer argues that if a state of intermediacy is recognized "legal thinking would degenerate into political arbitrariness without the confining walls of the firmly established distinction between war and peace," Lothar Kotzch, The Concept of War: In Contemporary History and International Law (Geneve: Librairie E. Droz, 1956), p. 241; According to Fritz Grob, the term "intermediate state represents...some of the worst kind of legalistic verbiage that can be imagined," op. cit., p. 222; Soviet Professor Gregory I. Tunkin, also argues that since under contemporary international law "war" is considered as the "greatest breach of international law," and the "acceptance of the proposal to introduce in international law this 'third status' would result in 20 law. They attribute certain predetermined legal consequences to these abstract formulations and disregard the realities of international politics. Such an attitude often leads one to the mixing of utopia with reality: the what ought to be with what is. Yet, law in general and international law in particular is a dynamic institution to the extent that it reflects the political realities. As Professor Claude observes: "In a society of contending groups, law is not the only effective way of preventing violence, or even the most important method; instead, politics is the device which has proved most useful."21 The task of those who deal with the legal problems of states must be "...to weed, to prune, to create--not to cling to outmoded solutions of another era and bemoan the passing of international law."22 This is what the proponents of the doctrine of intermediacy are attempting to do. They are trying to close, at least narrow down, the gap between state practice and the old rules of international law. legally consecrating the situation of international tension and 'cold war'," "Coexistence and International Law," Recueil des Cours. (1958) III, p. 52; see also Gregory I. Tunkin, "Peaceful Cooperation or 'Intermediate Status'," New Times (Moscow) No. 25 (June 1956), pp. 810; CF. Nathan Feinberg, The Legality of "State of War" After the Cessation of Hostilities (Jerusalem: Magnes Press, 1961), pp. 48–51. Professor Myres S. McDougal while rejecting the dichotomous approach as artificial and abstract and ultimately untrue in the sense of not corresponding to contemporary realities, questions the usefulness of recognizing an intermediate status in the face of the complexity of process of international coercion. He is of the opinion that "a method of analysis more comprehensive and flexible than either dichotomy or trichotomy seems necessary," because international coercion that takes place between the polar extremes of "war" and "peace" encompasses "a continuum of coercive practices of infinitely varying modalities and degrees of intensity." He, therefore, concludes that "between the polar extremes of the lowest and highest degrees of coercion there is not one stage of intermediacy but countless stages... "Myres S. McDougal and Associates, Studies in World Public Order (New Haven: Yale University Press, 1960), p. 245; See also Myres S. McDougal, "Peace and War: Factual Continuum with Multiple Legal Consequences," A.J.I.L. 49 (1953), PP. 66-67. 20 On the gap between normative law and customary law, see Urban G. Whitaker, Politics and Power: A Text in International Law (New York: Harper and Row, 1964), pp. 42-48. 22. Morton A. Kaplan and Nicholas deB. Katzenback, The Political Foundations of International Law (New York: John Wiley and Sons, Inc., 1961), p. 29. The doctrine of intermediacy appears to reflect more accurately the existing realities of international politics. However, when the advocates of this doctrine argue the existence of a third status between "war" and "peace" they primarily refer to the twilight zone of the coercive measures falling short of "war." Since these measures are undertaken during a period of "peace" it appears that they consider this third status closer to "peace" than "war," for such measures which carry limited objectives are "pacific" in character and the state against which such measures are undertaken has not decided to go to "war." Starting from this point the doctrine of intermediacy may be criticized on the following grounds. First, there seems to be a contradiction between the dominant notion of the doctrine, that is "the basic condition of hostility," and the alleged condition of "peace" between states who resort to coercive measures falling short of "war." The idea of "basic conditions of hostility" is more descriptive of a "warlike" relation between the opponents. would be more accurate, therefore, to maintain that the third condition is closer to "war" than to peace. It Second, the coercive measures resorted to by the United States and the Soviet Union are not only more numerous than envisaged by traditional international law but also their natures are different. For example, the term "quarantine" used initially to describe the action adopted by the United States against Cuba in October-November 1962, "was a new method of blockade, "23 containing the elements not only of pacific blockade but more so the elements of a "war-time blockade." Furthermore, "war by proxy" such as the one being waged in South Viet-Nam, the invasion of the Bay of Pigs in 1961, invasion of Indian territories by Communist China, the U-2 incident, invasion of Sinai by Israel, invasion of the United Arab Republic by Great Britain and France, the Hungarian Uprising of 1956, and a host of coercive measures including indirect aggression, intervention, infiltration, subversion, etc., cannot be considered similar to those sanctioned by traditional international law of "peace." Third, since the traditional coercive measures falling short of "war" take place during the time of "peace," nothing should prevent the 23 von Glahn concurs in this view, see op. cit., p. 510; Friedmann argues that "the development of many forms of hostile international activities that are difficult to fit into the established categories, such as the Cuba 'quarantine' or the various forms of 'indirect' aggression, lends substance to the suggestion...that there may be developing a state of 'intermediacy' between peace and war.... op. cit., p. 271. Concerning the Cuban "quarantine" Professor Friedmann writes: "It was quite clear...that the United States would have imposed quarantine and taken any further military measures necessary to remove or destroy the missile threat from Cuba...even if a Security Council or General Assembly resolution of the United Nations had actively opposed such intervention," p. 260; see also Quincy Wright, "The Cuban Quarantine," A.J.I.L. 57 (1963), p. 546. 68-855 0-6621 the opponent from exchanging the patterns of "peace" for that of "war," whereas under present conditions the opponents are precluded from starting a thermonuclear armed conflict because of the tacit moratorium on such a "war." Fourth, the traditional coercive measures were in the past resorted to primarily by a great power against a small power, whereas the unconventional means of coercion at present are being used either directly between great powers or indirectly by their proxies. In view of these considerations, in place of the term "state of intermediacy" describing the third status between "war" and "peace" the term "armistice condition" is suggested here. The term "armistice condition" denotes the state of affairs that prevails during the existence of a de facto moratorium on all-out nuclear armed conflict at which time hostile opponents continue to resort to unconventional means of coercion for the purpose of weakening the enemy from within. IV. Armistice as a Third Status "Peace" must be regarded as a state of affairs during which states adjust their interest primarily through political processes. When there occurs a breakdown in political adjustment of interests, and thus the possibility of "peaceful change" is blocked, and states resort to unlimited forms of coercion for the purpose of overpowering their opponent and imposing their will upon the enemy, they must be considered in a state of armed conflict. It appears that states seldom find themselves in a state of "peace" because of the existence of mutual fear and suspicion which precludes the proper functioning of the political process of adjustment of mutual interests. In such a society, therefore, "war" becomes a normal condition, which is concommitant to anarchy. However, the mere absence of a legal state of armed conflict must not be construed as "peace, because states may consider all-out armed conflict detrimental to their vital national interests and instead resort to limited means of conventional or unconventional means of coercion. This situation must be considered closer to an armed conflict and must be viewed as constituting an armistice condition. Armistice condition may be due to the following developments: 1. The use of limited means of coercion for limited ends, i.e., an intention to affect but not to crush the opponent's will; example: the conflict between Turkey and Greece over Cyprus. 2. Conversion of active armed conflict into armistice condition because of (a) the impossibility of overpowering each other; (b) the intervention of great powers or an international organization for the cessation of the military operations; example: the armed conflict between Israel and the Arab States. 3. The achievement of equal capacity of total destruction through thermonuclear weapons which forces the opponents to concentrate on unconventional means of coercion in order to weaken each other from within; example: the conflict between the Western and Communist blocks. Theoretically, in the first two cases there exists the possibility of starting or resuming the armed conflict. However, in fact, under the impact of the nuclear stalemate between the two opposing power blocs such a possibility becomes almost nil. This may lead one to conclude that an armistice agreement signed under those conditions terminates the legal state of armed conflict and initiates the armistice status between the belligerents. The third case, following the first, leads to the permanency of armistice status between the opponents, for the more opponents realize the risks of total conflict, the greater will be the tendency for the condition of armistice to perpetuate itself. Admittedly, this new concept of armistice status is contrary to the concept of armistice as envisaged in the Regulations annexed to the Hague Convention IV of 190724 and to the views of writers, 25 army manuals, 26 and court decisions. 27 However, everyone will agree with the argument that the institution of armistice has undergone basic changes in state practice since 1918.28 It now exhibits basically two types: (a) Capitulatory Armistice (examples: Armistice between the Ottoman Empire and the Allied Powers of October 1918; Armistice between France and Germany and Italy of June 1940; Armistice between Italy and Allied Powers of September 1943; the Unconditional Surrender terms imposed upon Germany in May 1945); (b) Stalemate Armistice as a result of the mediatory influence of Great Powers or world organizations (examples: Armistice between Lithuania and Poland of 1920; Armistice between Turkey and the Allied Powers of 1922; Renville Truce Agreement between Indonesia and the Netherlands of 1948; 24This Convention may be found in Marcel Deltenre, General Collection of the Laws and Customs of War on Land, on Sea, Under Sea and in the Air According to the Treaties Elaborated by the International Conferences since 1856, (Bruxelles: Les Edition Ferd, Wellens-Pay, 1943). 25 Lassa Oppenheim, International Law: Disputes, War and Neutrality (London: Longmand, Green and Co., 1952) 7th ed. Edited by Sir Hersh Lauterpacht, p. 548; Col. Howard S. Levie, "The Nature and Scope of the Armistice Agreement," A.J.I.L., 50 (1956), p. 881. 26U.S. Department of Army, FM 27-10, The Law of Land Warfare (Washington: Government Printing Office, 1956), paragraph 479. 27 See Dusseldorfer Allgemeine Versicherung A.G.U.L. Case in Annual Digest and Reports of Public International Law Cases: 1919-1922, p. 441; and Kotzias v. Tyser case Ibid., p. 443. 28 Some of these changes are recorded in Col. Levie, op. cit. |