Elena Chachko considers the problem of immunity for United Nations workers in Lawfare (which is celebrating its 6th anniversary today!):
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”.
What are the accusations against al-Bursh?
… 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.
Given the deadly enmity of Hamas for Israel, it’s easy to understand why Israel wishes to continue to press charges. At the same time, however, it’s incumbent on the United Nations to ensure proper process is followed; if it does not, the morale of its staff plummets and it risks ineffectivity – thus the letter. As less than an amateur, my guess is that Israel should agree to delay the trial, but since al-Bursh can be considered a flight risk, to leave him imprisoned, and to encourage the United Nations to expedite its investigation. So long as Israel controls al-Bursh, it may or may not pay attention to United Nations directives as it sees fit.
al-Bursh would seem to be worthy of United Nations protection in inverse correlation to the extent that he was corrupted by the alleged Hamas operative; so much is clear. Thus, if the United Nations decides to direct that immunity be stripped from al-Bursh, they are making an admission of probable guilt for al-Bursh. Can the United Nations investigation be considered authoritative? If so, can Israel use it in its subsequent prosecution?
U. N. Flag
And the larger issue is that of loyalties. How much can the United Nations, a higher level synthetic entity, count on loyalty to itself from its staff, and how much can it expect itself to be used by its staff for the ends of other entities, either at the state level or even lower? Indeed, is it even corruption when a member of the staff is attempting to benefit some other entity which has far more legitimate history behind it than the United Nations, which has only existed since shortly before the end of World War II?
