During the current Gaza conflict, several incidents gave rise to a serious suspicion that UNRWA is repeatedly violating international law by aiding Hamas in its armed conflict against Israel. Below I will describe what can be done about the aforementioned suspicion and what are the UN’s legal and moral obligations in handling the case.
UNRWA is an agency of the United Nations. It occasionally enters into agreements with states independently and in its own name, a practice that may imply that UNRWA enjoys an international legal identity and thus may be liable under international law. In any event, UNRWA’s personnel are UN personnel and UNRWA is subject to the UN’s directions, therefore the actions of UNRWA may subject the UN to liability since the UN is an international organization with an international legal personality. Immunity is discussed below.
During the recent hostilities in Gaza between the IDf and Hamas, it was exposed that rockets were stored in UNRWA facilities, including schools. UNRWA itself admitted (look at the date of the press release, the notice in the link is the third time) on three different occasions (this link leads to the two preceding incidents) that rockets were found stashed in its facilities. What did UNRWA do with the stashed rockets? hand them to Hamas, a belligerent party known for firing rockets at civilian objects indiscriminately. Not to mention that these rockets are illegal per se since they are indiscriminate weapons that cannot be aimed at a specific target. These are statistical weapons. The best evidence for this is the number of rockets launched by Hamas that fall within Gaza, killing their own people. These incidences give rise to the suspicion that UNRWA and some of its employees violated the laws of neutrality.
In addition, pursuant to recent reports, it is a common practice by Hamas militants to use UNRWA facilities, either from within or from their proximate vicinity, to shoot at Israel. By allowing this UNRWA is allegedly violating the principle of distinction between civilian objects and military targets, which is a core principle in the laws of armed conflicts. In addition, since Israelis were killed in such attacks, due to the exploit of the protection granted by the UN facilities, it is possible that UNRWA and some of its employees committed or aided and abetted Hamas to commit perfidy – which is the exploitation of a protected status in order to kill or injure an adversary. These aforementioned incidents include the booby trapped UNRWA clinic under which there was a tunnel shaft used by Hamas militants for belligerent purposes and firing mortar shells from a site located right next to an UNRWA school (a 4 year old Israeli died as a result).
One of the benefits of having international legal personality is immunity. Pursuant to the Convention on the Privileges and Immunities of the United Nations (from 1946) UNRWA, the UN and their personnel enjoy very wide immunities. Therefore it would be illegal to investigate, prosecute or commence enforcement actions against the organizations and their employees in respect of the aforementioned allegations. However, pursuant to Sections 20 and 21 of the same convention it appears that the UN Secretary General, Ban Ki-Moon is obligated to waive said immunity and the UN itself is obligated to aid Israel in investigating and seeking justice for these alleged crimes and violations of the law.
The operation of International law, by and large, is dependent upon self enforcement and diplomatic measures rather than a robust judicial and enforcement system. Only a few days ago another UN branch passed a resolution to nominate a committee in order to probe Israel’s compliance with the laws of armed conflict during this round of hostilities, disregarding the legal principle of ne bis in idem satisfied by the fact that Israel regularly self regulates IDF operations and conducts investigations almost after every major operation as required under international law. Under these circumstances it is only reasonable to expect the UN, if not to adhere to its own standards and have an impartial third party investigate its and its employees’ alleged violations of international law, at least adhere to Israel’s standards and investigate itself and its employees. It is time for the UN to set an example of compliance with international law and enforcement of justice, if you refuse to be judged you cannot expect to judge others.