JURIST Guest Columnist Laurie Blank, of Emory University School of Law, discusses the protection of UN premises during armed conflict and argues that, while critically important, such inviolability cannot be absolute in light of the fundamental purposes of the law of armed conflict…

The nature of conflict fought unceasingly in civilian areas places a constant strain on organizations dedicated to civilian protection and humanitarian assistance during conflict. In ideal circumstances, their personnel and facilities remain immune from the violence, allowing them to carry out their essential tasks of feeding, sheltering, educating and providing medical care.

Unfortunately, the reality bears little resemblance to this ideal. When terrorists and armed groups use protected sites and facilities as headquarters, weapons storage and launch sites, what should be important immunity for protected sites becomes unwarranted and unjustified immunity for fighters violating the fundamental tenets of the law of war. Understanding the parameters—and limits—of inviolability for protected sites is therefore crucial to applying the law effectively to protect civilians and ensure lawful military operations.

During the 2014 Israel-Hamas conflict for example, Hamas and other terrorist groups in Gaza regularly and repeatedly launched rockets and mortars from within or immediately next to UN facilities—whether schools, medical clinics or other locations. Multiple times, rockets were found in such facilities, and militants used the area in or around such facilities in the course of tactical maneuvers and attacks.

On several occasions Israeli airstrikes or artillery fire targeting these militants and rocket launchers near or in these facilities—so as to stop attacks on Israeli civilians or Israeli forces under fire in Gaza, and destroy Hamas’ capability to launch more attacks—tragically killed or wounded men, women and children seeking shelter from the hostilities raging around them.

In condemning these Israeli attacks, top officials at the UN Relief and Works Agency in Gaza and UN Secretary-General Ban Ki-Moon stated emphatically that UN facilities are inviolable and any shelling of UN schools is “absolutely unacceptable.” Five years earlier a UN Board of Inquiry relied on the same notion of absolute inviolability [PDF] when examining responsibility for damage resulting from attacks near or within UN schools during Operation Cast Lead.

UN facilities around the world enjoy protections enshrined in the 1946 Convention on the Privileges and Immunities of the UN [PDF]. In particular, Article 3 of the Convention 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.

Although essential, inviolability cannot be absolute however. The idea of absolute immunity runs counter to the very framework of the law of war, 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. More specifically, absolute immunity incentivizes such abuse by granting protection to those misusing protected sites—ultimately harming only the civilians in desperate need of the UN and other organizations’ services.

There is little doubt that the overall requirement of inviolability of UN premises helps to protect civilians who have sought shelter at such locations. As with all protected sites, the law mandates that such protection is only lost if the site is used for acts harmful to the enemy; as with all conduct during wartime, the law requires that any attacks comport with the fundamental principles of distinction, proportionality and precautions.

Absolute inviolability, however, would mean that no matter how much one side abuses such protections for their own military and propaganda purposes, the other side can never take any action to counter that threat. As a result, this absolute immunity thoroughly upends the law of war’s delicate balance between military necessity and humanity; between the military objective of defeating the enemy and ending or deterring the threat it poses, and the humanitarian imperatives of protecting innocent civilians from the hazards and destruction of war.

Imagine this same principle of “absolute immunity” applied across the board to protections in armed conflict. Civilians who pick up arms and engage directly in hostilities would remain immune from attack—meaning that soldiers would be unable to defend themselves against civilians fighting on behalf of enemy forces, not even as a basic act of self-defense. Militants could turn hospitals, mosques, ambulances and churches into headquarters, rocket launch sites and tactical transportation with the shield of absolute immunity preventing opposing forces from taking any action to deter or repel their attacks. And soldiers facing attack from forces tucked into UN school courtyards would be left with no recourse to return fire or even cover their withdrawal from the area. Such rules would have no force because they would make no sense—and civilians would bear the brunt of war without rules, because civilians are the ones the law seeks and was designed to protect.

But “absolute inviolability” also creates a second, more insidious danger. As demonstrated by the commentary during the 2014 conflict in Gaza, attacks against Hamas and other militants near or at (and therefore misusing) UN premises triggered criticism, creating incentives for the militants to induce more such attacks with persistent abuse of UN premises. When parties gain both an operational advantage and a propaganda windfall for using protected sites for military operations, every UN school will become a launch site, every mosque a storage facility and every hospital a command post.

Beyond the tactical advantage parties would gain through the abuse of critical legal protections, the misuse of UN and other specially protected sites has a broader and more problematic, strategic purpose. After drawing attacks near or on erstwhile protected sites—notwithstanding the fact that they have lost their protection because of misuse and abuse of legal protections—militants use the resulting civilian deaths as a strategic tool to accuse the attacking party of war crimes, subject it to international criticism, delegitimize its military operations and strategic imperatives and potentially even cause it to withdraw its forces. Granting absolute immunity, regardless of abuse, to certain facilities or sites, strongly incentivizes one party’s forces to simply surround themselves with civilians in every conceivable location and circumstance, effectively guaranteeing greater civilian casualties and increased civilian suffering. Civilians thus become merely a pawn for tactical, strategic and political advantage—in direct contravention of the obligation for all parties to conflict to take constant care to spare civilians, the civilian population and civilian objects from the dangers of military operations.

Inviolability of UN premises is critically important and all sides must respect it at all times. But absolute respect for inviolability is different from absolute inviolability. Understanding the limits of that inviolability however is just as essential to the protection of civilians and the efficient and effective workings of the law of war. In a legal framework focused on protecting civilians and built on balance and pragmatic realities, “absolutes” ultimately undermine the law’s central purpose and incentivize ever-greater abuse and manipulation of the very civilians the law is designed to protect.

Laurie Blank is Clinical Professor of Law and Director of the International Humanitarian Law Clinic at Emory University School of Law and was one of the principal founders of the clinic in 2007. Previously, she was a program officer in the Rule of Law Program at the US Institute of Peace in Washington, DC, where she ran a working group on New Actors in the Implementation and Enforcement of International Humanitarian Law.

Suggested citation: Laurie Blank, The Limits of Inviolability: UN Facilities During Armed Conflict, JURIST – Academic Commentary, Jan. 22, 2015, http://jurist.org/academic/2015/01/Laurie-Blank-inviolability-conflict.php.