Israel’s showdown with the UN over immunity for Gazan engineer
Marian Houk, John Brown, +972 Magazine, Sep 22 2016
It didn’t take more than a few hours before the UN found out Shin Bet agents had arrested one of its Palestinian engineers as he was returning to the Gaza Strip through the Erez military checkpoint. The very next morning, on Jul 4, a senior UNDP official in Jerusalem fired off a “Note Verbale” to Israel’s minister of foreign affairs, Benjamin Netanyahu, that expressed anxiety.
At around 1730 hours while at Erez, Mr al-Bursh was taken by two security officers, and since then we know nothing about him.
The UN official, Roberto Valent, asked that Israel provide the grounds for and circumstances of Bursh’s arrest, what charges he might face, and when he might be brought to court. In addition, he asked for access to Bursh “in his place of detention as soon as possible,” and for “assistance in arranging legal representation and the presence of UNDP at any court hearings.” These requests are part of long-standing procedure codified in a UN 1981 Administrative Instruction and approved in a 1982 UNGAR, during the Cold War, when the UN had special concerns for its staff members who were, usually for political reasons, sometimes made to disappear during their “home leave” and secretly jailed, in certain countries.
The Israeli Foreign Ministry was slow to reply (government regulations require written answers in 20 working days). Only when the Shin Bet was ready did the Foreign Ministry launch a high-profile campaign, on Aug 8. The next day Bursh had his first court hearing, which was held behind closed doors and without the presence of a UN official. In their announcement, Israeli authorities said they “arrested” Bursh on Jul 16, which means he was held almost two weeks longer in isolation under interrogation than Israel has so far publicly acknowledged. As part of the public campaign it launched surrounding the UN engineer’s arrest, the Israeli Ministry of Foreign Affairs posted a Shin Bet statement saying:
Borsh confessed that he did indeed carry out activities that aided Hamas. … During the Waheed Borsh investigation, it was discovered that he had been instructed by a senior member of the Hamas terrorist organization to redirect his work for UNDP to serve Hamas’ military interests. … According to Borsh, other Palestinians who work for aid organizations are also working for Hamas.
This last claim links to a statement about another recently arrested Gaza man who works in a senior position for World Vision, thereby portraying Bursh as a collaborator. The indictment of Bursh, along with the high-profile case of World Vision local director Mohammad el-Halabi, both from Gaza, appears to be based exclusively on Shin Bet interrogations. The two men are both charged with “assisting Hamas,” which is a crime in Israel but not in Gaza. His prosecution is only possible because Israeli courts often claim universal jurisdiction with regards to security matters. The UN, however, asserts that Bursh enjoys limited immunity as a UN employee. Waheed Bursh was working under contract for the UN. According to a letter from the UN Legal Office to Israel, 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 the performance of his mission.” Only the UN Sec-Gen can lift or waive that immunity, the UN Legal Office wrote to Israel’s Mission to the UN on Aug 23, making clear that this is not up to Israel to decide. Undeterred, Israel’s UN Ambassador Danny Danon and Israeli Foreign Ministry Spox Emmanuel Nachshon both subsequently stated that Israel will refuse to recognize any immunity for Bursh, who Danon called a “terror activist.” Danon told Channel 2 News he intends to reject this demand completely. (Hebrew) Foreign Ministry Spokesman Emmanuel Nachshon told Ynet:
It is outrageous that a man assisting a terror organization could benefit from UN immunity. The claim (the UN’s assertion of immunity) was examined by jurists who determined it is ‘unsubstantiated’.
A UN official who spoke with +972 explained:
Bursh was indeed a contractor but the issue of ‘functional’ immunity applies to contractors.
The UN Legal Affairs Office confirmed in its letter of Aug 23:
Bursh, a UNDP service contract holder assigned to work on projects in Gaza,” had “been accorded the status of expert on mission.
This is a status Israel has used quite often to shield its own officials from arrest related to war crimes investigations while traveling abroad. For UNDP, however, the main charge in Israel’s indictment remains unsubstantiated. Israel’s indictment alleges that Hamas asked Bursh to divert rubble from destroyed homes for the construction of a port to be used (in the future) by Hamas’s military wing, the Izz’ed-Din al-Qassam Brigades. On Aug 12, UNDP published a statement saying:
There was no diversion of rubble from its designated location to Hamas. The rubble was delivered by UNDP in coordination with the Palestinian Authority to a civilian area. There were no signs of Hamas presence in that area at the time. … UNDP has twice requested access to Mr Al Bursh to verify his fair treatment whilst in detention. At this time, such access has not been granted.
As of Sep 14, the UN had still not been granted access to Bursh, UNDP/PAPP Communications Specialist Dania Darwish confirmed to +972. Bursh was held incommunicado for almost 40 days, with no UN or legal assistance, and of course no contact with his family in Gaza. Such treatment is common in Israel, particularly for Palestinians, because confessions are often prioritized over other standard investigatory tools, including forensics. The sure way to obtain conviction in Israeli courts is by getting a confession, and when Palestinians are the suspects, it rarely matters how it was obtained. Israeli courts rarely throw out confessions gleaned by torture, which is allowed under certain circumstances. The two indictments, against Halabi and against Bursh, appear to be based entirely on confessions obtained by Shin Bet after each of these men was isolated, undergoing interrogation and under pressure for weeks, with no access to a lawyer. Dore Gold, director-general of Israel’s Foreign Ministry, says that Halabi was arrested and then the importance of his position with Hamas was discovered. In other words, Halabi may have been initially detained and interrogated on a fishing expedition. Gold wrote in a statement published on the ministry’s website:
The investigation revealed much information concerning additional figures in the Gaza Strip who exploited their work in humanitarian aid organizations and UN institutions, on behalf of Hamas.
Indeed, Halabi may well have implicated Bursh, and others as well, during Shin Bet interrogations. The Shin Bet’s statement on Bursh, published by the Foreign Ministry, implies that Bursh also implicated Halabi and other Palestinians working for aid organizations who “are also working for Hamas.” It is likely that the two men would know each other. They are both from, and live in, Jabalia, and they are approximately the same age. Halabi also worked for UNDP in Gaza before he joined World Vision. Amnesty International reported:
Mohammed Halabi was initially denied access to a lawyer and, when she was eventually allowed to meet him, he alleged he had been seriously mistreated in custody.
Amnesty has made no statement about Waheed Bursh. When asked why, an Amnesty representative replied:
No particular reason. We can’t cover everything.
In its so-far unpublished letter dated Aug 23, The UN Legal Office wrote that Israel has an obligation under the UN Charter (Article 105.1) to respect the status of UN personnel in the State of Israel. The letter states that the privileges and immunities are spelled out in the Convention on the Privileges and Immunities of the UN, which was adopted by the UNGA in Feb 1946, and “to which Israel has been a party, without any reservation, since 21 Sep 1949.” The UN Legal Office here gave a clear signal to Israeli authorities that there are big issues at stake, and asked Israel to release Bursh to UN custody, pending the Sec-Gen’s decision on lifting or waiving immunity which, the UN Legal Office said, would require Israel sending it more information through the proper channels. When Israel provides additional information as requested, “as well as the facts supporting the charges” against Bursh, the UN Sec-Gen will determine if the immunity “impedes the course of justice and can be waived without prejudice to the interests of the UN.” Netanyahu was scheduled to meet Ban Ki-moon during his trip to New York this week. A UN official told +972:
The UN is not saying that its personnel enjoy immunity from illegal acts. “As soon as the UN is provided with the requested information that supports the allegations, the UN will swiftly respond with its determination on immunity.
The next court hearing for Bursh is on Sep 28. Halabi’s next court hearing will be in October.