Recent incidents involving the Israel Defense Forces (IDF) and the United Nations Interim Forces in Lebanon (Unifil) have raised an important question. Can Israel lawfully target UN peacekeepers and premises in Lebanon, or would that constitute a war crime? To answer that question, it’s worth looking at the rules of International Humanitarian Law and how they relate to these apparent attacks by the IDF.
First though, some background. Since Israeli troops entered Lebanon on October 1, there have been a number of incidents where IDF units have apparently targeted Unifil positions in southern Lebanon. This happened most recently on October 20, when the UN reported that “an IDF bulldozer deliberately demolished an observation tower and perimeter fence of a UN position” in Marwahin, near Lebanon’s border with Israel.
Israel has repeatedly called for Unifil units to withdraw from the area. But, according to a UN statement of October 22: “Despite the pressure being exerted on the mission and our troop-contributing countries, peacekeepers remain in all positions.” The UN statement added that: “breaching a UN position and damaging UN assets is a flagrant violation of international law and Security Council resolution 1701. It also endangers the safety and security of our peacekeepers in violation of international humanitarian law.”
Getting to grips with the legal position involved here begins by looking at the principle of “distinction”. This requires a party to the conflict to distinguish at all times between civilian and combatants, and between civilian objects and military objectives.
A combatant is everyone who is a member of the armed forces of a party to the conflict, with the exception of medical and religious personnel. In turn, the notion of armed forces comprises all organised armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates. Everyone who falls outside this category is considered a civilian.
It’s a fundamentally important distinction. Combatants can be killed unless they are hors de combat (captured, trying to surrender or incapacitated). Civilians, meanwhile, enjoy absolute protection from attack and cannot intentionally be targeted unless they take a direct part in hostilities.
Civilians or combatants?
So, are Unifil peacekeepers combatants or civilians? Despite Unifil being armed and under military command, it is a peacekeeping force and not a party to the conflict. Unifil is mandated by UN security council resolution 1701. It operates with the consent of its host state, Lebanon, and in accordance with the principles of neutrality, impartiality and limited use of force.
Since the war between Israel and Hezbollah ended in 2006, its job has been to confirm Israel’s withdrawal from southern Lebanon, ensure that the government of Lebanon exercises effective authority in the area and prevent the entry of weapons into the region. Crucially, Unifil is not engaged in hostilities with either the IDF or Hezbollah. So it is not a party to the conflict.
From this it follows that Unifil peacekeepers must be considered civilians and enjoy protection from attack. So they cannot be intentionally attacked by the IDF unless they engage in conduct amounting to “direct participation in hostilities” (DPH).
For conduct to qualify as DPH, it must either kill or injure a party to an armed conflict, or destroy or damage a protected object. This must be deliberate, intentional and result directly from the action of the person accused.
In practice, this means that a peacekeeper would be committing DPH by, for example, shooting on IDF soldiers with the intent of affecting their military operations. If that was the case, a peacekeeper would lose protection from attack, but only for the time they engage in the conduct amounting to DPH. After this conduct has ended, they would regain protection from attack.
Crucially, Unifil peacekeepers have never fired on IDF soldiers. If they did perhaps return fire from IDF soldiers, they would acting in self defence, rather than with the intention of affecting the IDF’s military operations. So their actions would not be sufficient for them to be regarded as combatants and they’d still be protected as civilians.
What is a legitimate military target?
The same conclusion can be reached with regards to IDF attacks on Unifil’s premises. These qualify as civilian objects and are protected from direct attack. Only military objectives are legitimate targets because, according to IHL, they make “an effective contribution to military action” and their capture, destruction or neutralisation offers a definite military advantage.
Clearly, that is not the case for Unifil posts. So attacking Unifil peacekeepers and premises would violate the principle of distinction and qualify as a war crime under the Rome Statute of the International Criminal Court. So, intentionally demolishing a Unifil watchtower with an IDF bulldozer, as happened recently, appears to qualify as a war crime, despite the claim that there was a Hezbollah weapons cache near the watchtower.
It’s worth adding that peacekeepers and their premises must be the intended target of the attack for it to be a violation of the principle of distinction. If the IDF’s target was – as claimed – a nearby Hezbollah weapons cache, which clearly qualifies as a military objective, any resulting damage to peacekeepers or their premises must be evaluated under the principle of “proportionality” and must not exceed the military advantage anticipated from the attack. Once again, launching an attack with the knowledge it would cause excessive incidental damage would amount to a war crime.
In the confusion of an IDF offensive in southern Lebanon it’s impossible to ascertain all the details beyond reasonable doubt. Knowing what actually happened is one thing. But once the fog of war lifts and the details become clear, so will the judgment of international law.
Giacomo Biggio does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
