Yes, UN facilities used by Hamas may be attacked under international law

Last month, UNRWA chief  Philippe Lazzarini said:

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.

Does international law give UN facilities any additional protections beyond what all civilian objects receive?

From reading recent articles about Israel striking Hamas members in UN facilities, that seems to be the impression given. For example, NPR said, "Striking U.N. facilities is prohibited under international law. But Israel argues that Hamas' use of those facilities also violates international law and makes them a legitimate target." The use of the word "also" makes it sound like Israel's argument is that it admits that hitting the UN facilities violates international law but that the law doesn't apply in this case, when that is not Israel's argument. Israel says that when Hamas uses those facilities, they are no longer considered civilian. 

It doesn't make sense that UN facilities should be more protected than, say, a non-UN school or a mosque. If it is hosting terrorists or military assets, it becomes a military asset.

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.

The author's conclusion is that the inviobility of UN facilities is not absolute, and in fact essentially the same as for any civilian objects under the laws of armed conflict (LOAC.)

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.

Those complaining about Israeli strikes on UN facilities that are hiding Hamas and Islamic Jihad terrorists rarely express any condemnation of the misuse of those facilities that force Israel to attack to begin with. 

(h/t Irene)

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The @WashingtonPost's investigation about Shifa Hospital misses the real story

On Thursday, the Washington Post published an investigation  casting doubt on whether Shifa Hospital in Gaza was being used as a Hamas command center.

Its top major finding: "The rooms connected to the tunnel network discovered by IDF troops showed no immediate evidence of military use by Hamas."

The key to the story is the word "immediate:"

“The law is about what was in the mind of the attacker at the time the attacker planned and executed the mission with respect to both what they expected the collateral damage they expected to cause and the military advantage they anticipated gaining,” said Michael Schmitt, an emeritus professor at the U.S. Naval War College.

The IDF would not comment on the military advantage sought or achieved.

“What was the urgency? This is not yet being demonstrated,” said Yousuf Syed Khan, a senior lawyer with Global Rights Compliance, a law firm, who has drafted U.N. reports on siege warfare.

While the underground tunnel uncovered by Israeli forces after the raid does point to a possible militant presence underneath the hospital at some point, it does not prove that a command node was operating there during the war.

“We’re getting more of a granular, three-dimensional understanding of al-Shifa Hospital, the tunnels underneath it,” said Brian Finucane, a former legal adviser at the State Department and now a senior adviser at Crisis Group.

“What we’re really lacking here is a confident understanding of the fourth dimension, which is time. When were various elements of the hospital being used in certain ways? When were the tunnels beneath the hospital complex being used in certain ways?”

The Washington Post has its doubts:

The bare, white-tiled rooms showed no immediate evidence of use — for command and control or otherwise. There are no signs of recent habitation, including litter, food containers, clothing or other personal items.  

Let's look at the context.

Hamas' use of the hospital for military purposes was well known as early as 2006. Even the Washington Post itself wrote in 2014 that it  “has become a de facto headquarters for Hamas leaders, who can be seen in the hallways and offices.” 

Israel had built bunkers under the hospital when Gaza was under Israeli control, but bunkers aren't tunnels. However, we know that there were tunnels under Gaza's Al Wehda Street that were bombed in the 2014 war, and that street leads directly to the hospital compound. Given that Hamas built hundreds of tunnel shafts underneath their offices and leaders' homes, it is apparent that there were connections between Hamas offices in the hospital basement and the tunnels under Al Wehda Street.

Israel might not have revealed the specific locations of each shaft, and that is hardly important considering that there is no doubt that these tunnels existed directly underneath a hospital.

Just as there is no doubt that the only purpose of these tunnels, underground rooms and bathrooms is military. They aren't hotels or summer camps.

The IDF first laid out a specific series of accusations about the Shifa Hospital on October 27, nearly three weeks before the raid, before the ground war even began. There were unofficial discussions of Shifa Hospital before that. It didn't show "urgency" - it showed unheard-of patience before moving in.

Hamas knew the IDF was coming for them. And they had weeks to clear out and clean up the evidence from the tunnels (even though they left behind plenty of weapons on the hospital grounds themselves, which were harder to clean up since there were so many people around.)

Here's the part that no one is talking about: The IDF knew quite well that they were giving Hamas a heads up that they were coming. They knew Hamas would not stay and it would hide evidence of explicit military use. So why give the warning at all? Why not surprise Hamas? What army tells the enemy where they will be going?

The warning was meant to force Hamas commanders to move to other areas. 

This achieves three military aims. Firstly, it  disrupts their operations temporarily. Secondly,  it allows the IDF to go there, gather evidence and valuable intelligence like footage from cameras, and destroy the military infrastructure beneath Shifa without a firefight and endangering patients and civilians taking shelter. And thirdly, Hamas leaders moving to other areas allows Israel to attack them without worrying about the complexity of protecting hospital patients during a battle.

Israel has now released evidence that Hamas brought hostages to Shifa. The tunnels had electricity and plumbing that were attached to Shifa's infrastructure. Weapons were found in the radiology ward and in a garage on Shifa's grounds. We know that employees and even directors at other hospitals were also Hamas terrorists. The Gaza health ministry is Hamas and it admits its officials have Hamas military rank. While there might not be direct evidence of Hamas using those tunnels underneath Shifa in mid-November as their main headquarters, no one can seriously doubt that Hamas used the hospital for military purposes and that the reason was to use the patients as human shields. 

Israel managed to clear Hamas out of the hospital it was using for military purposes with a minimum of fighting and a minimum of physical destruction. That is not violating international law - it is adhering to it in ways far beyond the limited imaginations of those whose entire worldview is poisoned by always assuming malevolence from Israel.

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Buy the EoZ book, PROTOCOLS: Exposing Modern Antisemitism  today at Amazon! Or order from your favorite bookseller, using ISBN 9798985708424.  Read all about it here!

 

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In English, Palestinians are poor, hapless victims. In Arabic, they are strong jihadists.

A tweet from Palestinian propagandist Nour Odeh:

Overnight, Israeli forces attacked Nour Shams refugee camp in Tulkarem and literally plowed the streets & infrastructure leaving devastating & destruction in its wake.

She showed a video of an IDF bulldozer and then a bulldozed street.

But in Arabic, Palestinian terrorists are celebrating - because they have video of IED exploding in those same streets.

In other words, they mined their own streets - endangering their own people - in an attempt to blow up soldiers, and the IDF is forced to use the armored bulldozers to clear the IEDs.

An explosion like that would barely slow down an armored D9R bulldozer. 

As usual, the Palestinians are trying to have it both ways - claiming victimhood status while they bury IEDs in their own streets. Their placement of the bombs are meant to protect terrorist infrastructure as they whine about civilian infrastructure that they are subverting for attacks. 

(h/t Jon S)

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Buy the EoZ book, PROTOCOLS: Exposing Modern Antisemitism  today at Amazon! Or order from your favorite bookseller, using ISBN 9798985708424.  Read all about it here!

 

Read More