There is growing evidence that some employees of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) have been involved in terrorism-related activities in Gaza. If true, and if the problem turns out to be more widespread than is currently known, the implications would be profound. An official UN body being complicit in war crimes would be one of the greatest scandals in the organization’s history.
An Israeli intelligence document said that a dozen UNRWA employees were involved in the Hamas attack on Oct. 7 last year when 1,200 people were murdered and more than 200 were taken hostage.
“We were shocked, we took this seriously because these were very serious allegations,” UNRWA director of communications Juliette Touma said.
As soon as the revelations were made known, UNRWA Commissioner-General Philippe Lazzarini summarily dismissed the employees in question. Such a hasty move might suggest that the UNRWA had been turning a blind eye to the problem.
Earlier accusations of the UNRWA tolerating, if not supporting, the dissemination of textbooks encouraging Gazan children to take revenge against Jews seem almost trivial compared with the crimes that its employees are now alleged to have committed. Given the role that the UN would almost certainly play in Gaza’s reconstruction, an independent investigation of the allegations against UNRWA frontline staffers, as well as of top agency leaders in New York, is urgently needed.
National governments have a clear role to play here. For example, since at least 42 victims of the Hamas attack were French citizens, France has standing to pursue justice through its criminal courts. On Oct. 11 last year, the French national anti-terrorism prosecutor’s office (PNAT) launched its own investigation into the “murder, kidnapping, and hostage-taking by an organized group and against minors under 15 years of age, in connection with a terrorist enterprise.” In addition, 25 families of French victims have lodged a complaint with PNAT, alleging “crimes against humanity.” Similarly, on Nov. 16 last year, the French-Israeli editor of Israel Magazine filed a complaint against Hamas at the Paris Judicial Court for crimes against humanity.
These legal actions concern only Hamas. However, there is nothing stopping investigations conducted by PNAT and the Paris court from targeting UNRWA through a complaint from a nongovernmental organization (NGO) or from families of French victims, or simply because that is where the facts might lead.
In this case, the UNRWA, as the main administrator of foreign aid to Gaza, could be indicted for complicity in crimes against humanity and financing terrorism, as could UN leaders who supervise the agency. Since the agency’s creation in 1949, it has administered tens of billions of dollars of aid — including more than US$1 billion in 2022.
However, we know that Hamas has had the means to build a sprawling network of tunnels and military infrastructure beneath the enclave. Of course, Hamas receives substantial subsidies from friendly states such as Iran, but critics of the UNRWA argue that it has failed to police how the funds it disburses are used.
The question, then, is whether any such failure amounts to criminality, insofar as Hamas has been listed as a terrorist organization by the European Council since 2003.
One could even imagine the prosecution of individual UN officials, judging by the case law of the French Court of Cassation in the judgements against the wartime Nazi collaborator and former Paris police chief Maurice Papon, and the French cement maker Lafarge.
In its January 1997 ruling, the court concluded that Papon, while serving as a senior official in the collaborationist Vichy regime, had aided and abetted the “unlawful arrest, false imprisonment, murder and attempted murder amounting to crimes against humanity” against Jews, thus participating in “a concerted plan carried out on behalf of Nazi Germany.” Whether Papon adhered to Nazi ideology was irrelevant.
In the Lafarge case, which is ongoing, the court has already said that the French Criminal Code does not require that an accomplice — whether an individual or a legal entity — in a crime against humanity belong to an organization guilty of such crimes, nor that it adhere to its concerted plan against civilians, nor that it approve of the crimes committed.
The court on Sept. 7, 2021 ruled: “It is sufficient that [the accomplice] is aware that the principal perpetrators are committing or will commit such a crime against humanity and that his aid or assistance facilitates its preparation or commission.”
Specifically, the company allegedly maintained business relations with radical groups in Syria after a civil war erupted in the nation in 2011, despite France having designated them terrorist organizations. The case has not yet gone to trial, and the procedural ruling is in no way a verdict on guilt.
However, it is worth noting that the company continued to pay — via its Syrian subsidiary — more than 5 million euros (US$5.5 million) to radical groups to keep its cement plant in Syria operational. The court could have limited itself to qualifying this act as a terrorist-financing offense. In its ruling on the admissibility of legal action against the company, the court concluded that maintaining commercial relations with the Islamic State would constitute both terrorist financing and complicity in crimes against humanity.
Based on this case law, any official at the UN or elsewhere who is proven to have known that funding was going to Hamas would not be immune from criminal proceedings in France.
Of course, the question of diplomatic immunity for UN officials could come up. However, Section 20 of the 1946 Convention on the Privileges and Immunities of the United Nations says that this protection can be circumvented when necessary.
“Privileges and immunities are granted to officials in the interests of the UN and not for the personal benefit of the individuals themselves,” the convention states. “The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the UN. In the case of the Secretary-General, the Security Council shall have the right to waive immunity.”
Investigations concerning UNRWA should begin at the UN level, but would also come before French courts. With most major donor countries having already suspended funding to the UNRWA, there might be criminal proceedings beyond those envisaged in France. No one’s guilt can be presumed. However, in 2018, the European Court of Auditors criticized the UN’s inadequate control over the use of European humanitarian funds dedicated to NGOs and managed by the UN.
At a minimum, greater scrutiny of UNRWA is essential.
Noelle Lenoir, a former French minister for Europe, is an honorary justice of the French Constitutional Court.
Copyright: Project Syndicate
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