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[Noelle Lenoir] Can UNRWA officials be prosecuted?

By Korea Herald

Published : March 14, 2024 - 05:31

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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.

According to an Israeli intelligence document, a dozen UNRWA employees were involved in Hamas’s attack on Oct. 7, when 1,200 people were murdered and more than 200 taken hostage. “We were shocked, we took this seriously because these were very serious allegations,” UNRWA director of communications Juliette Touma told France24. As soon as the revelations were made known, UNRWA Commissioner-General Philippe Lazzarini summarily dismissed the employees in question. Such a hasty move may 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 to the crimes that its employees are now alleged to have committed. Given the role that the UN will 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, 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.”

These legal actions concern only Hamas. But there is nothing stopping investigations conducted by PNAT and the Paris court from targeting UNRWA through a complaint from a nongovernmental organization or families of French victims, or simply because that’s where the facts may 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 $1 billion in 2022. Yet 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 judgments against the wartime Nazi collaborator Maurice Papon and the French cement maker Lafarge.

In its Jan. 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 or not Papon adhered to Nazi ideology was irrelevant.

In the Lafarge case, which is ongoing, the court has already noted that the French Criminal Code does not require that an accomplice 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.

Specifically, the company allegedly maintained business relations with jihadist groups in Syria after the war erupted 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. It is worth noting, however, that the company continued to pay (via its Syrian subsidiary) more than 5 million euros ($5.4 million) to jihadist 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. But section 20 of the 1946 Convention on the Privileges and Immunities of the UN suggests 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 will also come before French courts. And, with most major donor countries having already suspended funding to the UNRWA, there may be criminal proceedings beyond those envisaged in France. No one’s guilt can be presumed. But in 2018, the European Court of Auditors criticized the UN’s inadequate control over the use of European humanitarian funds dedicated to nongovernmental organizations and managed by the UN. At a minimum, greater scrutiny of UNRWA is essential.

Noelle Lenoir

Noelle Lenoir, a former French minister for Europe, is an honorary justice of the French Constitutional Court. -- Ed.

(Project Syndicate)