[Tamer Morris is a Senior Lecturer in international law at the University of Sydney]
In early October, it was reported that Israeli authorities requested UNIFIL to relocate their position to the north of the Blue Line. On the 10 October the IDF directed attacks against UNIFIL personnel and installations, injuring two peacekeepers. On 14 October, UNIFIL reported that two IDF tanks have forcibly entered into a UNIFIL base, injuring 15 UN staff. Netanyahu has reiterated Israeli calls for UNIFIL to evacuate.
This post sets out UNIFIL's legal status in the conflict, focusing on the legality and consequences of IDF military activities against UN peacekeepers.
UNIFIL's Mandate
UNIFL was established in 1978 by Resolution 425, however, following the 2006 Lebanese War, the Security Council updated UNIFIL's mandate in Resolution 1701, to authorise "UNIFIL to take all necessary action in areas of deployment of its forces and as it deems within its capabilities, to ensure that its area of operations is not utilized for hostile activities of any kind," and to "ensure the security and freedom of movement of United Nations personnel." As such, UNIFIL cannot relocate or abandon their post without UN authorisation.
Although UN peacekeeping is principled on the consent of all parties, including Israel, UNIFIL as an agent of the UN is to only consider the Security Council mandate for their legal authority. Therefore, although Israel has requested them to relocate, it would be up to the Security Council to update or conclude UNIFIL's mandate. In particular, UNIFIL's mandate is to ensure that their area of deployment is not used for hostile activities and is obligated to use all necessary means to ensure that the parties adhere to the Security Council's mandate.
The Legal Status of UNIFIL
To appreciate the legal status of UN peacekeepers, it must be understood that peacekeepers are deployed on behalf of the international community, and therefore, cannot be legally targeted. In particular, peacekeeping is founded in three principles - consent of the parities, impartiality and the use for force for self-defence and the defence of the mandate. As such, UN peacekeepers are not to be considered as parties to the conflict. In 1994 the UN attempted to codify the 'special' status of peacekeepers by submitting the Convention on Safety of United Nations and Associated Personnel (the Safety Convention). Further, the 'intentional and direct' attacks against peacekeepers have been included as a crime under the Rome Statue, Article 8(2)(b)(iii). However, Israel is not a party to the Safety Convention or the Rome Statute.
As UN peacekeepers are not parties to the conflict, under the law they are to be afforded the same protections as civilians. Although UNIFIL has a military component deployed in South Lebanon, they are still afforded the civilians status as long as they are not a party to the conflict. Hence, any attack directed against UNIFIL peacekeepers who are not participating in hostilities is prohibited.
Consequently, individuals that have been charged with attacks against peacekeepers have not been charged under the Safety Convention or the Rome Statute, but rather under IHL provisions prohibiting attacks against civilians. For example, as stated by the Special Court for Sierra Leone in Prosecutor v. Sesay, Kallon and Gbao, (para 215):
The prohibition against attacks on peacekeeping personnel does not represent a new crime. Instead, as personnel and objects involved in a peacekeeping mission are only protected to the extent that "they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict", this offence can be seen as a particularisation of the general and fundamental prohibition in international humanitarian law against attacks on civilians and civilian objects.
As such, it is irrelevant if Israel is a party to the Safety Convention, as any attacks directed towards UNIFIL would fall under their IHL obligations not to direct attacks against civilian and civilian objects. As such, the direct attack against UNIFIL and their installations would be a violation of the principle of distinction, as UNIFIL and their bases are considered as civilians and civilian objects.
While Netanyahu has stated on X that "Israel will make every effort to prevent Unifil casualties and will do what it takes to win the war." The attack on UNIFIL's base camp and any damage cannot be considered as 'collateral damage'. Because the target itself is not a military target, any attack on civilians or a civilian object is prohibited. Although Netanyahu has stated that UNIFIL's refusal to relocate "has the effect of providing Hezbollah terrorists with human shields." This does not legally justify directing an attack on UNIFIL or their base. In particular, the forceful entry into UNIFIL bases would be a violation of inviolability of UN premises. Under Article 2(3) of the Convention on the Privileges and Immunities of the UN, any premise of the UN shall be inviolable, and free from any form of interference, regardless of location.
Can UNIFIL Lose Their Protected Status?
UN peacekeepers are afforded the protected status for as long as they do not directly participate in hostilities. A concise definition of 'direct participation' does not exist under the Geneva Conventions, and although there is developing literature on 'direct participation' (for example, Crawford; Sivakumaran; Dinstein), the current legal discourse is not easily transferable to UNIFIL. Specifically, it is unclear whether UNIFIL is participating in hostilities by holding their military position or using force against the IDF to uphold their mandate.
In the Special Court of Sierra Leone in the Sesay case was given an opportunity to conclude on instances when peacekeepers could be directly participating in hostilities, and thus lose their protected status. The Special Court, in assessing attacks directed towards peacekeepers, established that peacekeepers retain their protected status even if they engage in force as long as they are acting in self-defence or defence of those around them. In this situation the accused RUF fighters were found guilty of directly targeting peacekeepers, although UN peacekeepers engaged in force to defend themselves.
As such, applying the reasoning of the Special Court, force used by UNIFIL to uphold their mandate may not classify UNIFIL as participating in hostilities, but rather civilians acting in self-defence. This understanding stems from the legal understanding of the civilian status, as it would be unreasonable to suggest that civilians lose their protected status when using force to defend themselves. As stated by the ICRC in their guide on Direct participation in hostilities, "if individual self-defence against prohibited violence were to entail loss of protection against direct attack, this would have the absurd consequence of legitimizing a previously unlawful attack."(pg. 61). Thus, as concluded by the ICRC, "the use of necessary and proportionate force in such situations cannot be regarded as direct participation in hostilities" (pg. 139). The Special Court employed this line of reasoning to contend that peacekeepers when using 'necessary and proportionate' force to defend themselves or their mandate should not lose their protected status.
Applying this reasoning to UNIFIL, UN peacekeepers would remain as 'civilians' only if proportionate force is used in reaction to an attack. As such, if UNIFIL uses force to defend themselves against IDF attacks to hold their position, it would still be prohibited to directly target them. However, once force is no longer proportionate to the attack, UN peacekeepers would be consider as directly participating in hostilities and lose their protected status. For if UNIFIL engages in conflict against Israel, irrespective of their intention behind the force, the laws of IHL must apply to that conflict entirely. As such, only when UNIFIL's use of force reaches a level of intensity, would they be classified as a party to a conflict, and therefore, legally targetable.
To date UNIFIL has not engaged in the required level of force, and therefore would retain their civilian status.
Israel's Consent
As UN peacekeeping is based on the consent of all parties, thus, Israel or Lebanon can withdraw their consent at any time. In the past the Security Council has been reluctant to maintain a UN peace mission without the consent of States. It must be noted, although consent is a principle of UN peacekeeping, UNIFIL's legal authority comes from the Security Council resolution and not from Israel's consent. Especially as Israel and Lebanon have both consented to the authority of the Security Council by entrance into the UN Charter. Therefore, like all other Security Council resolutions, UN Member States "agree to accept and carry out the decisions of the Security Council" (Art 25 of the UN Charter).
Consequently, if Israel formally removes their consent and asks for UNIFIL to withdraw, it will be up to the Security Council to decide to withdraw UNIFIL or keep the mission deployed. It must be noted that without Israel's consent, UNIFIL would be classified as an enforcement mission under the binding power of the Security Council, rather than a peacekeeping mission. However, even as an enforcement mission, UNIFIL still retain the protected status as long as they are not directly participating in hostilities with Israel.
To date, Israel has not withdrawn their consent, but rather has requested that UNIFIL relocate or evacuate from a specific deployed area. However, as stated above this cannot be done without UN authorisation.
Conclusion
While Israel has requested UNIFIL to relocate, UNIFIL is bound by their mandate in Resolution 1701 and cannot abandon their position. Although UNIFIL is holding their position, and have a military component, they are not legal targets. Therefore, any direct attack against UN peacekeepers would be a grave violation of IHL. Because all attacks directed towards civilians is prohibited under the law.