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 past 24 hours. Rockets were fired from Lebanese territory, and there was intensive shelling and bombing from the Israeli side.
All UNIFIL positions in the area of operation are permanently occupied and maintained by the troops. There were 15 incidents of firing close to UNIFIL positions, and a position close to the village of Marwahin suffered on direct hit from the Israeli side causing material damage, but no injuries. UNIFIL is still facing serious restrictions in its freedom of movement through the area due to the ongoing hostilities and severe destruction of roads and most of the bridges. Yesterday, UNIFIL dispatched a re-supply of food, water, and fuel to its positions.
July 19 There were seven incidents of firing close to UN positions. Impacts of Israeli aerial bombardment detonated around 20 land mines in the immediate vicinity of a UNIFIL position south west of the village of Yarun, and caused an outbreak of fire. The troops were able to extinguish the fire before it reached the position. All UNIFIL positions in the area of operation are permanently occupied and maintained by the troops.
July 20 There were 31 incidents of firing close to UN positions during the past 24 hours, with three positions suffered direct hits from the Israeli side. Ten artillery shells impacted inside UN position of the Ghanaian battalion on the coast in Ras Naqoura, causing extensive damage. Four artillery shells impacted inside the patrol base of the Observer Group Lebanon in the Marun al Ras area, including three direct impacts on the building which caused extensive damage and cut electricity and communication connections. At the time of the shelling, there were 36 civilians inside the position, most of whom were women and children from the village of Marun Al Ras. There were no casualties. One artillery shell impacted inside the UNIFIL Headquarters compound in Naqoura, causing extensive damage and danger to the UNIFIL hospital where the doctors were operating at the time. Splinters of artillery shells also damaged the boundary wall of the Naqoura camp. Extensive shelling damage was reported in the Ghanaian battalion position south of Alma Ash Shab. Hezbollah firing was also reported from the immediate vicinity of the UN positions in Naqoura and Maroun Al Ras areas at the time of the incidents.
July 21 There were seven incidents of firing close to UN positions during the past 24 hours, with three positions suffering direct hits from the Israeli side. Three artillery shells impacted on the building inside the patrol base of the Observer Group Lebanon (OGL) in the Marun Al Ras area, causing extensive damage to the buildings and vehicles, but with no casualties. Four artillery shells also hit this position a day earlier. There are 34 civilians from the village of Marun Al Ras inside the position. One artillery shell impacted inside the UNIFIL Headquarters compound in Naqoura yesterday evening, and one impacted inside a Ghanaian battalion position in the area of the village of Marwahin this morning. No casualties were reported, but there was material damage. UN equipment and vehicles were also damaged by splinters in the Ghanaian battalion position in the area of At Tiri in the central sector, and in the patrol base of the OGL in the Khiyam area in the eastern sector.
July 22 There were fifteen incidents of firing close to UN positions from the Israeli side during the past 24 hours, including a direct impact from an artillery shell inside a Ghanaian battalion position in the Marwahin area. No casualties were reported, but there was some material damage. Thirty two Lebanese civilians from the village of Marun Al Ras, who took shelter inside a patrol base of the Observer Group Lebanon (OGL) for the last three days, decided to leave the UN position at their own will this morning, and relocate north. In the last three days, this position suffered direct hits by seven artillery shells on two different occasions.
July 23 There were seven incidents of firing close to UN positions from the Israeli side during the past 24 hours, mainly due to aerial bombardment in the area of the patrol base of the Observer Group Lebanon in Khiam. All UNIFIL positions in the area of operation remain permanently occupied and maintained by the troops. Yesterday, UNIFIL re-supplied a number of UN forward positions close to the Blue Line, including two positions in the Marun Al Ras area. Additional re-supply convoys are planned for today. UNIFIL provided escort to 150 members of the Lebanese Joint Security Forces and to a number of civilians from Bint Jubayl to Tibnin.
July 24 One unarmed UN military observer, a member of the Observer Group Lebanon (OGL), was seriously wounded by small arms fire in the patrol base in the Marun Al Ras area yesterday afternoon. According to preliminary reports, the fire originated from the Hezbollah side during an exchange with the IDF. He was evacuated by the UN to the Israeli side, from where he was taken by an IDF ambulance helicopter to a hospital in Haifa. He was operated on, and his condition is now reported as stable. There were nine other incidents of firing close to UN positions during the past 24 hours, with two positions suffering direct hits from the Israeli side. Two aerial bombs impacted inside the Ghanaian battalion headquarters in the area of Tibnin, and three mortar rounds impacted inside an Indian battalion position in the Adaisseh area, causing extensive damage to the buildings and vehicles in both cases, but no casualties. Four aerial bombs impacted in the immediate vicinity of a Ghanaian position in the area of Brashit, and eleven tank rounds impacted in the immediate vicinity of a Ghanaian battalion position in the Rmaich area causing significant material damage.
July 25 Four members of the Ghanaian battalion with UNFIIL were lightly injured yesterday evening, when a tank round from the Israeli side impacted inside their position south of Rmaich. They were evacuated to the UNIFIL hospital in Naqoura and their condition is stable. There was also extensive material damage to the position. There were six other incidents of firing close to UN positions from the Israeli side during the past 24 hours. This morning, Hezbollah opened small arms fire at a UNIFIL convoy consisting of two armored personnel carriers (APC) on the road between Kunin and Bint Jubayl. There was some damage to the APCs, but no casualties, and the convoy was obliged to return to Kunin.
UNIFIL’s official mandate is to a) Confirm the withdrawal of Israeli forces from southern Lebanon; b) Restore international peace and security; c) Assist the Government of Lebanon in ensuring the return of its effective authority in the area. If each of the press releases is read in their entirety is manifestly clear that UNIFIL is performing none of these authorized missions. Instead it has become a kind of ambulance and relief service for the killed and injured on the Lebanese side of the border. The releases are peppered with accounts of UNIFIL personnel escorting what are described as civilians and villagers to places of safety. This is not really part of its mandate, which is not to say that it is immoral or wrong.
All the incidents of IDF fire reported in the press releases are clearly related to some kind of nearby combat with the Hezbollah. In one case the IDF fired on a village into which the UNIFIL had gone, but rockets had originated from the vicinity of the village prior. In another case, an Israeli aerial bombardment detonated mines all around a UNIFIL position. Those mines were presumably not planted by UNIFIL, but they were so close to it that the UN position caught fire. The UN observation post in Maroun al-Ras was hit by artillery, but we know from press reports that Maroun al-Ras was the epicenter of heavy fighting and the location of a Hezbollah bunker complex. The UN even ran a convoy from the Hezbollah “capital” of Bint Jubayl to another area. Bint Jubayl is well known to be the target of an IDF attack. Yet the UN felt that it was possible to move convoys through such areas, albeit at considerable danger.
One reason that they could was that UNIFIL was evidently in contact with the IDF. In a sentence which speaks volumes we learn that “One unarmed UN military observer, a member of the Observer Group Lebanon (OGL), was seriously wounded by small arms fire in the patrol base in the Marun Al Ras area yesterday afternoon. According to preliminary reports, the fire originated from the Hezbollah side during an exchange with the IDF. He was evacuated by the UN to the Israeli side, from where he was taken by an IDF ambulance helicopter to a hospital in Haifa.” This strongly implies that UNFIL was able to coordinate their movements with the IDF and that the IDF was willing to risk men and aircraft to help UNFIL.
Now a lot will be made of UN positions being “clearly marked”. However nearly all of the fire reported on UN positions with the exception of the July 23 indicident in Kiyam, where the 4 UN observers were killed today, were from artillery, which is an area weapon. Artillery, depending on the angle and range from which it is fired, has a certain dispersion even allowing for crew perfection. (In contrast UNIFIL took small arms fire from the Hezbollah between Kunin and Bint Jubayl and small arms can only be used when visual contact is made). Imperfections in shell manufacture, operator error, barrel wear etc can cause an artillery round to fall off target. It is not called an area weapon for nothing. The one exception was a tank round that landed in a Ghanain position. But the firing was evidently not repeated which it would have had the tank gunner intended to destroy the Ghanaians.
The July 23 incident in Kiyam in “seven incidents of firing close to UN positions” involving aerial bombardment strongly suggests that Hezbollah positions were fairly close to the position of Observer Group Lebanon. It should be clear by now that the IDF had certainly not been deliberately targeting UNIFIL from July 17 to 25. How likely is it that the IDF after not aiming at UNIFIL should suddenly change their policy and aim to kill the observers at Kiyam, as categorically stated by UN Secretary General Kofi Annan?
One argument that will be heard is that since Israel has “precision weapons” the hit on the UN positions must have been deliberate. Yet it’s far more likely that the UNIFIL position was hit by mistake. Even with “precision weapons” the IDF has lost 2 men and 5 wounded to friendly fire so far. The UK Herald had this story:
Israeli forces are investigating two “friendly fire” incidents in which two helicopter pilots died and five infantrymen from the elite Golani Brigade were wounded during fierce fighting in southern Lebanon over the past four days. … Five Israeli soldiers were also wounded when an armed unmanned Israeli drone launched missiles against them in the same area on Sunday. The remote-controlled “killer drone” was halted by a desperate radio call as it was about to deliver a second salvo against the Golani infantrymen as they scattered for cover. An Israel Defence Force source said Hizbollah is fighting a Vietcong-style tunnel war in the scrub-covered hills around Bint Jbeil, using a network of underground routes and bunkers dug up to 130ft below the surface to move unseen and unscathed. “They know we have reconnaissance drones and satellite surveillance of the area, so they have taken to shifting squads around the sector by tunnel to avoid the risk of attracting airstrikes or artillery fire,” he said. … They are operating in squads of 10 to 12 men and they have an intimate knowledge of the terrain.
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.