Protection of UN Facilities During Israeli-Palestinian Hostilities: A Brief Assessment of the UN Board of Inquiry Findings

The release of United Nations (UN) documents on Israeli conduct always seems to give rise to controversy and heated debates. However, the latest publication of an UN Board of Inquiry investigating selected actions carried out during the 2014 Israeli and Palestinian hostilities has brought a relatively mild media storm. Israeli‘s acknowledgement of the investigation had already been shown through their active cooperation during the process. The Board’s findings show progress both in terms of quality and approach taken compared to an earlier 2009 investigation into selected incidents during the 2008-09 clashes between the same adversaries. Most importantly, the 2015 Board came up with several recommendations aimed at improving the internal security measures aiding the protection of UN facilities during hostilities. If implemented consistently, these recommendations should limit the abuse of such facilities for military purposes and thus reduce the risk of anyone located there from suffering the consequences of a potential, possibly entirely legitimate, attack.

A summary of the new Board’s report was made public by the UN Secretary General only last April and, like in 2009, the full document was not publicly released. The Board of Inquiry was tasked with investigating incidents which affected or involved UN personnel, premises and operations. The Board was specifically mandated to look into 10 incidents ‘in which death or injuries occurred at, or damage was done to, UN premises or in which the presence of weaponry was reported at those premises’ between 8 July and 26 August 2014. These incidents involved schools of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

Of the 10 incidents, three involved schools where weapons were allegedly stored. None of these had been designated or was being used as an emergency shelter at the time. All three schools were in summer recess and, in principle, free of pupils. But in one of them, a schoolyard had been made available for children’s use. The school gate remained unlocked, allowing unrestricted access. The Board subsequently established that weapons were found on all three premises, as previously reported, and in two cases the weaponry was then removed by unidentified individuals in somewhat mysterious circumstances. The Board suggested that one school might also have been used by members of a Palestinian armed group to launch mortar attacks. The Inquiry further concluded that in the remaining seven cases the damaged schools served as emergency shelters and all these attacks were attributed to the Israeli Defence Forces (IDF). Currently, all but one of these incidents are being investigated separately by the Israeli authorities.

The 2009 Board of Inquiry investigated only four incidents involving UNRWA schools. It attributed the attacks to the IDF in three of these. It is possible that two schools were not directly targeted, and that the resulting damage and casualties occurred as a side effect of an attack on another target. No military activity at the premises was established. The 2009 Board’s recommendations appeared almost entirely directed at the UN’s requests to the Government of Israel and did not include any recommendations about the UN’s own due diligence. The 2015 Board’s report was in stark contrast to this earlier report. It looked into the UNRWA internal security practices and arrangements and proposed a number of improvements to them. These included recommendations to enhance security at premises, such as by employing additional skilled security guards, and developing and implementing standard operating procedures for reporting security incidents.

The 2015 Board’s findings appeared essentially factual in nature. The Board clearly refrained from making legal assessments and conclusions as to the potential violations of the relevant laws. This is quite welcome, especially in the light of other UN-instigated investigations and their debatable findings. In both 2009 and 2015, the Boards of Inquiry stressed the fundamental protected status of UNRWA schools, invoking the rule on the inviolability of UN premises. Under this rule, enshrined in the 1946 Convention on the Privileges and Immunities of the United Nations, UN premises and vehicles, as ‘property and assets’ used by the UN, are immune from being transgressed against, searched or requisitioned. The inviolability is designed to protect a UN organization from unwarranted interference in its functions. This privilege includes both an obligation to refrain from entering such facilities or vehicles and, possibly, an active duty of a host state to protect them. In essence, permission to enter such facilities is never implied but must be given expressly unless agreements with host nations or contractual arrangements with local security companies specify otherwise. During national emergency situations, premises can potentially be accessed by the host state authorities without the prior, explicit consent of the UN. Such access must be based on the principles of good faith, cooperation, and communication.

The UN Board of Inquiry reiterated that UNRWA notified the appropriate Israeli authorities twice daily about the status of their premises and their use as emergency shelters. It is not clear whether the same notification was given to the relevant authorities on the Palestinian side. Such notification might have alleviated or even prevented the cases where facilities were transgressed and used to store weapons or launch attacks by armed groups. It is possible that such trespassing, and the use of UNRWA schools by militants, can be regarded as a violation of the inviolability of such premises. When the inviolability of the premises is compromised by the actions of one side to the conflict, the other side still has to respect it.

The law of armed conflict, which applies alongside the UN inviolability rule in situations of armed conflict, offers a perhaps more balanced approach. UN facilities, as well as schools, are generally seen as civilian objects in their nature, and therefore immune from direct attack. This implies that UNRWA schools would have been equally protected based on their status as schools or UN premises alone. Their immunity would be in jeopardy if they were used for military purposes. To say that something is used for ‘military purposes’ is, in fact, a shorthand of the legal requirement that the object is being used to ‘make an effective contribution to military action’ (Art. 52. 2 Additional Protocol I). It is widely accepted that such use encompasses both the actions of armed forces and the actions of armed groups in conflicts of non-international character and entails a broad variety of activities, including using the facilities as barracks, fighting positions, observation posts or weapons stores. Importantly, use can be temporary, which means the objects are immune from attack when they are not being used for military purposes. A repeated or regular pattern of use may give rise to a qualification of an object as a lawful target under purpose criterion defined as an intended future use. Both criteria are quintessentially circumstantial. The verification of whether an object is still being or is intended to be used for military purposes before the execution of an attack is absolutely paramount to ensuring the protection of civilians. If those undertaking such verification are in doubt as to an object’s status, they must call off an attack. Of course, even when following this rule to the letter, unfortunate mistakes can occur. When facilities are not subject to a direct attack they may still be damaged in an attack on another, intended target.

It also seems that the UN, claiming the inviolability of its premises, is willing to review and improve its own security procedures. This is remarkable because there is a direct cause-effect correlation, at least under the laws of armed conflict, between the use – or, rather, the abuse – of facilities for military purposes by one side, and the increased risk of them being attacked by the other side. By doing more to ensure the security of its premises, the UN can also contribute to the protection of civilians sheltering within its grounds. Take, for example, releasing weapons found on UN premises to local authorities. Such a practice might place weapons in the hands of local armed groups and perpetuate the conflict. Releasing the weapons to an agreed disposal depot might be a more appropriate way forward. Similarly, leaving gates to school compounds unlocked and unguarded is likely to lead to infringement of inviolability and to invite an unauthorised use of the facilities for military purposes. At the very least, the UN should require the same respect for its premises from the Palestinian side as it repeatedly expects from the Israelis. Weaknesses in security arrangements or their consequences can impact on the perception of the organization’s independence and impartiality and raise claims that it facilitates actions taken by militants. If the UN does not take effective steps to stop the use of its infrastructure for military purposes by both sides to the conflict equally, it risks not only being perceived as taking sides, but also, and more importantly, it puts at risk its own staff and all vulnerable civilians whom it is trying to protect.