Gaza Aid Workers, Hamas, and the Immunity of UN Officials

Israel has recently signaled that it intends to increase its efforts to disrupt Hamas’ attempts to tap into the funds and resources of international aid organizations operating in Gaza. But the criminal proceedings initiated by the Israeli authorities against two aid workers accused of helping Hamas have been met with international criticism, and in one of the cases, with a UN legal challenge. In this post, I consider the UN’s claim that a UNDP official charged with assisting Hamas should be granted immunity from prosecution.

On August 4, Israel announced that it had indicted Mohammed al-Halabi, the head of the Gaza branch of the international NGO World Vision, for diverting tens of millions of dollars in humanitarian aid funds to support Hamas’ military activities (see also here). According to the indictment and the statement of the Israeli Security Agency (ISA), al-Halabi is a longtime Hamas operative, who infiltrated World Vision in 2005 with the aim of exploiting the organization’s resources to assist Hamas.

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During his interrogation, al-Halabi admitted that 60% of the annual budget allocated by World Vision to the Gaza branch for humanitarian work was re-routed to Hamas’ military organs. In addition, al-Halabi has transferred a variety of goods ordered for World Vision directly to Hamas, including materials and equipment used in the construction of Hamas strongholds and underground “terror tunnels.” The indictment makes clear that al-Halabi was well aware of the fact that he was cooperating with Hamas, and mentions incidents in which he had trained with Hamas and provided information about the Israeli side of the border. According to the ISA statement, as a result of al-Halabi’s actions, the vast majority of World Vision humanitarian aid in Gaza was allocated to Hamas operatives and their families, while the rest of Gaza’s population hardly received any aid at all. Al-Halabi’s trial began on Tuesday, and it is not open to the public.

Shortly thereafter, on August 9 Israel announced that Wahid al-Bursh, a United Nations Development Program (UNDP) worker, had been indicted for using his position at the UNDP to provide material assistance to Hamas. According to the ISA, al-Bursh was approached in 2014 by a senior Hamas operative, who directed him to carry out his responsibilities in a manner that would benefit Hamas. Subsequently, al-Bursh used his influence over the UNDP rubble removal project, which was established in the aftermath of the 2014 Gaza hostilities, to divert construction materials that helped build a military naval port for Hamas in northern Gaza. He is accused of diverting construction materials from rehabilitation projects in Gaza to Hamas sites in other cases as well.

Al-Bursh was first arrested in mid-July. On August 18, the Be’er Sheba District Court ordered that he remain in custody throughout his trial (decision in arrest case 45913-07-16, Hebrew). The Court found, based on al-Bursh’s confession during his interrogation and after considering other supporting material, that there was sufficient prima facie evidence to prove the case against him. It further determined, after reviewing a classified brief prepared by the ISA, that al-Bursh is potentially dangerous because he might resume contact with Hamas if released.

At the same time, the Court pointed to flaws in the evidence presented by the prosecution, referring to a previous decision that had identified those flaws, which does not seem to be publically available at this time.

In both cases, the indictments against the aid workers have been met with international criticism. Several World Vision donors complained that Israel has not properly informed them about the proceedings against al-Halabi, a claim that Israel has denied. There were also claims that al-Halabi had been mistreated by the ISA, and World Vision dismissed allegations of financial impropriety. As for al-Bursh, the UNDP initially expressed concern over the allegations, said that it would investigate the matter and promised full cooperation with the Israeli authorities. However, a subsequent statement said that the UNDP had conducted an internal investigation and concluded that “[t]here was no diversion of rubble from its designated location to Hamas”.

Perhaps in light of the diverging factual accounts, the UN Office of Legal Affairs intervened late last week in an attempt to block the proceedings against al-Bursh. The OLA said in a letter to Israel’s mission to the UN that al-Bursh is entitled to immunity as a UN official. According to the letter, al-Bursh “enjoys immunity from personal arrest or detention, as well as immunity from legal process in respect of words spoken or written and acts done in performance of his mission.” The OLA therefore requested that al-Bursh be released and that all legal proceedings be suspended, to allow the UN secretary General to determine whether al-Bursh should be granted immunity. The letter also called on Israel to allow UN officials to investigate, and to provide access to al-Bursh while he remains in prison.

The UN’s demand was not well received by Israel, to say the least (see also here and here). Israel’s Foreign Ministry spokesman said that lawyers have examined the claim that al-Bursh should be granted immunity, and concluded that it was unsubstantiated. He stressed that “it is outrageous that a man assisting a terror organization could benefit from U.N. immunity”. Furthermore, Israel pointed out that the letter represents a shift in the UN’s position. Until now, Israel argued, the UN maintained that al-Bursh was merely an external contractor who provided services to the UNDP, and did not exhibit any intent to interfere with the investigation conducted by the Israeli authorities.

While Israel has emphatically rejected the UN’s position at the political level, the question of whether al-Bursh has immunity will likely still be considered at his trial. (The trial was postponed on Monday, shortly after the OLA letter had been received by Israel, to resume on September 29.) The Be’er Sheba District Court would have to consider several factors in determining whether immunity applies in this case.

From the point of view of international law, several instruments govern the immunity of the UN and its officials from legal proceedings. Article 105 of the UN Charter provides:

1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

These provisions were fleshed out in the 1946 Convention on the Privileges and Immunities of the United Nations. (August Reinisch provides a concise overview of the Convention’s history and text here.) The 1946 Convention outlines the immunities and privileges of the UN as an organization, as well as those of three groups of individuals: representatives of member states, UN officials (i.e., permanent staff), and experts on missions for the UN.

Article V, section 18(a) of the 1946 Convention provides that UN officials shall have immunity “from legal process in respect of words spoken or written and all acts performed by them in their official capacity”. In other words, officials enjoy functional immunity that applies only to the extent that their acts are tied to their responsibilities within the UN. The UN Secretary General has the deciding vote on immunity. Article V, section 20 provides that he may waive the immunity of UN officials, and, according to the ICJ, national courts should generally defer to the Secretary General in deciding whether immunity should be granted to a UN agent in a particular case. In its 1999 advisory opinion in Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, the ICJ held that

When national courts are seised of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts (para 61).

Lastly, since 2006, the Sixth Committee of the UN General Assembly has been considering the issue of the criminal accountability of UN staff and experts on mission, to address the problem of UN agents committing crimes with impunity while on duty. The process was launched largely in response to cases of sexual exploitation and abuse in UN peacekeeping operations (see here), but its products have been phrased in more general terms. However, it appears that the measures taken by the General Assembly and the Sixth Committee in the framework of this process do not detract from the immunities UN officials enjoy under the 1946 Convention. General Assembly resolution 69/114 on criminal accountability of United Nations officials and experts on mission, adopted in December 2014, specifically reaffirms “that the present resolution is without prejudice to the privileges and immunities of United Nations officials and experts on mission and the United Nations under international law”.

Israel has been party to the 1946 Convention since 1949. The main provisions of the Convention were incorporated into (future) Israel’s domestic legislation through the United Nations Privileges and Immunities Ordinance, 1947, in force to this day. The Ordinance empowers Israel’s Foreign Minister to grant certain immunities as provided in the addendum to the Ordinance to the UN and to different categories of its officials. Similarly to Article V, section 18(a) of the 1946 Convention, part C of the addendum provides that UN officials and other servants shall enjoy immunity from legal action for acts and omissions performed in their official capacity. Importantly, however, the implementing order issued pursuant to the Ordinance in 1947 only grants immunities to the UN, and does not explicitly refer to the immunities that apply to UN officials as provided in part C of the addendum to the Ordinance.

To the best of my knowledge, the Israeli Supreme Court has yet to weigh in on the scope of the immunity of the UN and its officials in Israel. Lower Israeli courts that have considered the issue have found that the UN and its organs, including the UNDP, enjoy nearly absolute immunity from legal proceedings under Israeli law, at least insofar as they act in fulfillment of their purpose (see, e.g., the Jerusalem District Court 2011 decision in case 2524/08 Doe v. UNRWA, Hebrew). This seems to be in line with the practice of other national courts (see this article by Rosa Freedman, and particularly, in the U.S., the 2010 2nd Circuit decision in Brzak v. United Nations (cert denied)). What is more, the consistent position of the Attorney General’s office before the courts, in several cases in which it intervened in favor of the UN, has been that the UN and its organs enjoy absolute immunity (see, e.g., case 4262/04 UNTSO v. Siragnian (2005); 10386/06 Doe v. Dgani (2008); 32295-10-11 Dajanipal. Tourist & Travel Agency v. UNDP (2013), all in Hebrew).

When it comes to the immunity of officials, many questions remain open, as there is no authoritative case law. The magistrate courts that have addressed the issue generally recognized the immunity of UN officials in Israel but held that it is more circumscribed then that of the UN, in line with the functional approach of the 1946 convention in this regard. They also exhibited reluctance to recognize immunity from criminal charges. For example, in one case a court denied immunity to a UN official sued for damages over a car accident; in another a court denied immunity to a UN worker charged with negligent manslaughter, even though the deadly accident occurred while the defendant was on duty, and the UN decided not to waive his immunity. The legal department of the Israeli Foreign Ministry, whose position was brought before the Court, supported this outcome, arguing that the offense was not committed in the defendant’s official capacity.

Where does this leave al-Bursh? Although the UN’s clear invocation of immunity certainly complicates things at the international level, from a domestic perspective, the trial court is not bound by its position. It might also give great deference to the government, as courts often do in cases that implicate national security. At the end of the day, the trial court’s decision will turn on whether the actions attributed to al-Bursh in the indictment can be said to have been performed in his capacity as a UNDP official. There is quite a big difference between furnishing humanitarian aid to the population in Gaza and contributing to the military build-up of Hamas.