Wednesday, July 17, 2024
Elder of Ziyon
Attacking, targeting or using UN buildings for military purposes are a blatant disregard of International Humanitarian law. UN staff, premises and operations must be protected at all times.Since the war in Gaza began, over 180 Unrwa buildings were hit and more than 450 displaced people were killed as a result.Unrwa shares the coordinates of all its facilities (including this school) with the Israeli Army and other parties to the conflict.Targeting UN premises or using them for military purposes cannot become the new norm. This must stop and all those responsible must be held accountable.
A 2017 paper published by the US Naval War College deals with exactly this point. "The Limits of Inviolability:The Parameters for Protection of United Nations Facilities during Armed Conflict" examines when UN facilities become legal to attack.
UN facilities around the world enjoy protections enshrined in the 1946 Convention on the Privileges and Immunities of the United Nations (CPIUN). In particular, Article 3 affirms that “the premises of the United Nations shall be inviolable.” This protection helps to enable the UN—and its many components, agencies and other offshoots—to carry out the critical work of protecting, feeding and supporting individuals and communities around the world in tense and violent situations. At the same time, in situations of armed conflict, LOAC governs the conduct of hostilities, including the targeting of persons and objects and the protection of civilians, the civilian population, civilian objects, and specially-designated objects from attack. The interplay between these two legal frameworks provides the foundation for understanding the protection of UN premises during armed conflict—and the limits of that protection.
The 58-page paper analyzes various situations that apply directly to the current war:
UN facilities that are used for military purposes will become military objectives and liable to attack, like any other civilian object. Indeed, the claim of absolute inviolability rests on the incorrect notion that there are some objects that can never be attacked, notwithstanding the fact that one side is using them to launch attacks or for other military purposes. LOAC simply does not include such a concept as “never target.”
Rather, the analysis under Article 52(2) of Additional Protocol I centers on whether the use of the object in question makes an effective contribution to military action—the first part of the definition of military objective—and whether its destruction, capture or neutralization offers a definite military advantage. Many of the examples reported during the 2014 Gaza conflict and earlier conflicts—storing weapons in residential buildings, schools, mosques, churches or hospitals; and launching rockets from in or near civilian buildings—fit directly within this construct. As the U.S. Department of Defense’s Law of War Manual states, “objects that contain military objectives are military objectives,” including storage and production sites for military equipment (which certainly includes mortars and rockets) and buildings or other facilities “in which combatants are sheltering or billeting.” For example, the 2014 UN Board of Inquiry examining incidents from the 2014 Gaza conflict noted that in one incident, where Israeli forces destroyed portions of an UNRWA school being used as an observation post and command and control structure, Israeli forces found “a Palestinian Islamic Jihad operational map and other military equipment” in the school.
LOAC provides the appropriate analytical legal tools to understand the protections UN facilities enjoy during armed conflict and the limits of those protections. Beyond the formal relationship between the privileges and immunities law of the UN and LOAC and aside from the inherent limits on the CPIUN’s application to military operations, LOAC’s framework demonstrates precisely why absolute inviolability, even in the face of military use, cannot be the rule for UN facilities or any other protected objects during armed conflict. Each of the protections, obligations and rules examined above contribute directly to and form the foundation for LOAC’s core goal of protecting civilians during conflict. They also represent the delicate balance between military necessity and humanity that lies at the heart of LOAC. Interpreting rights, obligations and protections during conflict in a manner contrary to LOAC’s core purposes will only serve to exacerbate suffering during conflict, thus undermining the law’s central objective of enabling “armed forces to achieve their strategic military objective while mitigating, to the extent feasible, the humanitarian suffering re-sulting from armed conflict.” If UN facilities are absolutely inviolable with regard to both attacks and use for military purposes, there is no mechanism to protect against the use and exploitation of such facilities for military purposes. First, the prohibitions against such use are insufficiently enforced. Second, the armed groups and armed forces that engage in such improper use are clearly not concerned about LOAC compliance or any possible public condemnation. Third, such groups gain an unreasonable operational benefit as a result if they can shield their military forces and equipment from attack; and fourth, these groups reap a substantial propaganda windfall in the event of any attack on their forces, equipment or positions near or in such facilities because the attacking party automatically faces public condemnation and criminal responsibility.Inviolability of UN facilities in all locations and situations is essential. However, the idea of absolute immunity, as framed by many responses to damage to UN facilities in Gaza, runs counter to the very framework of LOAC, which balances the protection for certain sites (such as hospitals or religious and cultural property) with the legitimate needs of military operations in the face of fighters abusing that protection. Although the urge to demand that such inviolability be absolute is understandable, granting protection to those misusing protected sites ultimately harms only the civilians in desperate need of the UN’s services.
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