The Limits of Inviolability: The Parameters for Protection of United Nations Facilities during Armed Conflict
92 Int'l L. Stud _ (2016)
58 Pages Posted: 10 Jan 2017 Last revised: 10 Mar 2017
Date Written: 2016
This article examines the international legal protections for UN humanitarian assistance and other civilian facilities during armed conflict, including both general international law setting forth the immunities of the United Nations and the law of armed conflict (LOAC), the relevant legal framework during wartime. Recent conflicts highlight three primary issues: 1) collateral damage to UN facilities as a consequence of strikes on military objectives nearby and military operations in the immediate vicinity; 2) the misuse of UN facilities for military purposes; and 3) direct attacks on fighters, weapons or other equipment that cause damage to such facilities.
UN facilities around the world enjoy protections enshrined in the 1946 Convention on the Privileges and Immunities of the United Nations, which 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. At the same time, in situations of armed conflict, the LOAC governs the conduct of hostilities, including the targeting of persons and objects and the protection of civilians, the civilian population, civilian objects, and specially-designated objects from attack. The interplay between these two legal frameworks provides the foundation for understanding the protection of UN premises during armed conflict — and the limits of that protection.
To identify the appropriate parameters for, and limits of, protection for such facilities, this article therefore focuses on what inviolability of UN premises — the term used in privileges and immunities law — means within the context of armed conflict and the law of armed conflict. Part II addresses the question of which law governs for the purposes of determining the scope of protection for UN facilities and analyzing actions during armed conflict to assess whether damage to UN facilities violated that law. In particular, this section first explores the meaning of “inviolability” in the CIPUN to understand if and how it applies in the context of military operations, and demonstrates that inviolability does not encompass harm from military operations during armed conflict. Second, this section applies the principle of lex specialis to demonstrate that even if one extends the principle of inviolability beyond its accepted understanding, LOAC is the appropriate legal framework for analyzing harm to UN facilities during armed conflict if there is a conflict between general international law on immunities of the UN and LOAC. Part III then examines how the LOAC’s rules on military objectives, specially-protected objects, proportionality and precautions apply in practice when UN facilities located in areas of combat operations face direct or collateral consequences from those operations.
Keywords: Law of Armed Conflict, Inviolability, United Nations, International Humanitarian Law, Lex Specialis, UNRWA, Geneva Conventions, Military Objectives, Proportionality, Precautions
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