UN chief Ban Ki-moon described Israeli attacks on UN-run schools in the Gaza Strip as "criminal acts." But his comments don't reflect the complexity of the situation, says a German expert on international law.
Wolff Heintschel von Heinegg: Indeed, it is a fact that you cannot so easily determine that there has been a violation of international humanitarian law. I believe that the secretary general's statement has been a little bit proactive and certainly premature.
Well, first of all, yes, United Nations installations are protected under international law, but this is subject to whether they are being used for military purposes by one of the parties to the conflict. So even United Nations installations do not enjoy an absolute protection - in particular not if they are abused for military purposes by one side of the conflict.
So it would depend on Hamas having stationed weapons or fighters in these premises in order to decide whether humanitarian law has been breached or not.
Yes, that is correct. So if they are being used, for example, as weapons depots, then they are being used for military purposes, and this is a direct contribution to the enemy's military effort, then those United Nations installations become lawful targets under international humanitarian law.
And then Hamas would actually be violating humanitarian law.
They would also violate international humanitarian law, because they are under a clear obligation to separate lawful military objectives from civilian objects and from the civilian population.
Now, when we speak about the UN and shelters, often the so-called "safe zones" come to mind, but that's another story, isn't it?
You are right, "safety zones" proclaimed by the United Nations, as we experienced them during the Yugoslavia conflict, is a different concept. So we have to distinguish between United Nations installations on the one hand, like the schools in the Gaza Strip, that are being used for all kinds of United Nations missions for the civilian population there, and the so-called "safety zones," which is a concept that only becomes operable if they are defended by an able contingent of armed forces.
What would Israeli forces then have to consider when attacking in order not to violate humanitarian law?
First of all, they must be sufficiently certain that the respective building qualifies as a lawful military objective, so if they have verified that the building is used as a weapons depot or as a hiding place for Hamas fighters, then they would be able to determine that the building has become a lawful target.
But this is not all. The second step is to verify whether, and to what extent, collateral damage would be excessive in relation to the military advantage anticipated. And, finally, the attacker must take precautions in attack, meaning the attacker must apply all feasible means in order to minimize as far as possible the collateral damage. Only then would the attack be lawful.
Wolff Heintschel von Heinegg is a professor of international law at the European University Viadrina in Frankfurt (Oder), Germany.