26 Jul The Shelling of the UN and the History of “International Personality”
Did Israel deliberately target a UN outpost? Secretary-General Kofi Annan called it an “apparently deliberate” strike that “deeply distressed” him. As quoted by CNN, he said in a statement
This coordinated artillery and aerial attack on a long-established and clearly marked U.N. post at Khiyam occurred despite personal assurances given to me by Prime Minister Ehud Olmert that U.N. positions would be spared Israeli fire.
The facts are disputed. According to one report,
The timeline provided CNN by a U.N. officer in Lebanon showed the first bomb exploded about 200 yards from the U.N. outpost at 1:20 p.m. Tuesday, prompting the first call by the UNIFIL observers to their designated contact with the Israeli military. The officer said they were assured by the Israeli liaison that he would stop the attacks.
A series of about nine more bombs hit within 100 to 400 yards from the observers over the next several hours, with a call to the Israeli military following each explosion.
The U.N. base at Noqoura lost contact with the outpost at 7:40 p.m., apparently the time of the direct hit, the officer said.
Initial reports are that four UN observers—from Austria, Canada, China and Finland—have been killed. Kofi Annan’s angry reaction, publicly calling Israel responsible, surprised some. They wondered whether it was Annan’s place to press Israel regarding the death of the UN observers. Only time will tell whether Annan was politically wise to have reacted publicly but history and international law make his reaction understandable.
The legal right of the UN to seek claims on behalf of itself or its employees is well founded. Such “international personality” was established by the ICJ in the advisory opinion Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11), having to do with the 1948 assassination in Jerusalem of a UN peace negotiator, Count Folke Bernadotte, by the group Fighters for the Freedom of Israel.
The ICJ saw that there were really two issues here: first, whether the UN could bring a suit for the damages it suffered and second, and more controversially, could it bring a suit on behalf of its employees for the damages that they suffered.
According to the Court’s summary,
On the first point, I (a), of the Request for Opinion the Court unanimously reaches the conclusion that the Organization has the capacity to bring an international claim against a State (whether a Member or non-member) for damage resulting from a breach by that State of its obligations towards the Organization. The Court points out that it is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover; the measure of the reparation should depend upon a number of factors which the Court gives as examples.
The second issue is more controversial because it is asking if the UN, an international organization, can undertake an activity that had traditionally been that of states, the diplomatic protection of nationals. The ICJ found that there was no common nationality between the UN and its agents, the analogy to diplomatic protection was limited.
However, the Court reframed the question on functional grounds and its reasoning was summarized as follows:
Do the provisions of the Charter relating to the functions of the Organization imply that the latter is empowered to assure its agents limited protection? These powers, which are essential to the performance of the functions of the Organization, must be regarded as a necessary implication arising from the Charter. In discharging its functions, the Organization may find it necessary to entrust its agents with important missions to be performed in disturbed parts of the world. These agents must be ensured of effective protection. It is only in this way that the agent will be able to carry out his duties satisfactorily. The Court therefore reaches the conclusion that the Organization has the capacity to exercise functional protection in respect of its agents.
The similarities are unmistakable—the UN’s international personality was initially defined in a case concerning the death of a UN official in the midst of a conflict during the establishment of Israel.
Add to this the memory of the Israeli shelling of a UN facility in Qana, Lebanon, in April 1996. In that case the UN sought a subsequent investigation, which found the shelling of the UN compound to have likely been deliberate.
Bringing together the roots of international personality in the Bernadotte case and the 1996 Qana shelling, there are numerous historical echoes and reverberations in the current incident. None of this is to say that Israel actually targetted the UN. However, if the UN does believe that is the case, it can have legal recourse against Israel. And, moreover, this history shows that there may be a certain level of mistrust between the UN and Israel on these issues. Whether and how this situation can move beyond bitter recrimination to conflict resolution, however, remains to be seen.
It’s tragic that the UN’s observers were killed, but they should have vacated immediately at the start of hostilities. To whit: In order to have some sense of how plausible this accusation is, it would be useful to examine the statements of the UNIFIL itself prior to this incident. Ever since hostilities started UNIFIL has been documenting its activity through a series of press releases. These provide a snapshot into what the UN troops were doing and how they have been faring during the period of combat. Date Excerpt July 17 The Lebanese government requested UNIFIL to provide a humanitarian escort to the villagers seeking safe passage outside of Marwahin. UNIFIL dispatched a patrol the village the same day, which stayed with the villagers throughout the night. Yesterday, UNIFIL was able to provide a humanitarian escort to 283 villagers from that area to Tyre. During this mission, the team came under fire, which endangered the lives of local civilians and UNIFIL troops. Initially, Hezbollah fired rockets from the vicinity of the village and subsequently the IDF fired into the village on two occasions. July 18 Heavy exchanges of fire continued all along the length of the Blue Line during the… Read more »
There is also increasing evidence that Hizbullah was using the UN position to fire Katusha rockets at Israel. In one notable case Candian newspapers are reporting that the Canadian soldier killed by the IDF shelling emailed friends in Canada shortly before his death that Hizbullah was using the UN position to fire at Isarel.
If this is true, Israel’s responce is unlikely to justify damages – as it was a legitimate act, and it was the behaviour of Hizbullah that put the position at risk.