09 February 2024

UNRWA as Sui Generis

UNRWA’s Palestinian Staff as Sui Generis International Civil Servants

On 30 January 2024, two United States House of Representatives subcommittees held a hearing on the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), entitled ‘UNRWA Exposed: Examining the Agency’s Mission and Failures’ and featuring testimony from the cottage industry of UN and UNRWA watchdog groups. These groups have caused UNRWA headaches for years by generating controversies over the social media activity of its local Palestinian staff (called ‘area staff’ in UNRWA parlance) and over alleged anti-Israel and antisemitic content in the Palestinian curriculum used by UNRWA schools in the West Bank and Gaza. The Agency has challenged the methodology and the sensationalised conclusions of these groups, as has an authoritative EU-funded German study. Nevertheless, these controversies have resonated in Washington and Brussels, which have forced UNRWA to devote significant resources to staff compliance with humanitarian principles, including neutrality, and undertake ever-closer scrutiny of the Palestinian curriculum.

The hearing came days after the Agency preemptively disclosed Israel’s claim to have evidence that 12 UNRWA employees participated in the 7 October 2023 attacks. Israel has separately alleged that around 1,200 Agency staff in Gaza – nearly 10 percent of its 13,000 employees in the territory – have ties to Islamist Palestinian armed groups, of whom nearly 200 are ‘hardened fighters, killers’.

These allegations were made public on the day that the International Court of Justice indicated provisional measures which Israel must undertake to prevent genocide in Gaza, including ‘immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip’. Although UNRWA is the largest UN entity and provider of humanitarian assistance in Gaza, at least 16 donor states and the European Union, which collectively supply the vast majority of the Agency’s budget, suspended their contributions in light of these allegations. A prolonged suspension of contributions would pose an existential threat to UNRWA, a subsidiary organ of the General Assembly which is funded almost exclusively by voluntary contributions.

I suggest that we need to understand this episode as part of an ongoing and largely successful attempt to position UNRWA as a compromised, sui generis UN organisation which should be understood as an outlier in the law and practice of the United Nations. This strategy parallels Israel’s longstanding practice of framing the question of Palestine as a sui generis situation which cannot be analysed or resolved with reference to general international law, a phenomenon which Israeli and Palestinian legal scholars alike have observed. This post, the first in a three-part series, explains how the current episode displays the unsatisfactory sui generis status of UNRWA’s Palestinian staff. These area staff are scrutinised for full compliance with the standards of conduct of the international civil service without the pay, rights and protections of international civil servants, as illustrated by the Agency’s ‘preemptive dismissal’ of the staff members accused of involvement in the 7 October attacks.

The Origins of UNRWA’s Area Staff

The workers now called UNRWA area staff were not originally envisaged as international civil servants. The General Assembly established UNRWA in resolution 302 (IV) of 1949 to implement the ‘direct relief and works programmes’ for Palestine refugees recommended by the UN Economic Survey Mission for the Middle East. The Mission had sought to effectuate the American preference that Palestine refugees be resettled rather than repatriated, although resolution 194 (III) of 1948 had established that Palestine refugees ‘wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date’. The Mission bizarrely described their mass expulsion from Mandatory Palestine as ‘both a symptom and a cause’ of their dire conditions of life in exile. It saw Palestine refugees as ‘reservoirs of idle manpower’ – hordes of cheap labour for grandiose development projects in the Arab host states. These labourers, so conceived, bore nothing in common with the UN Charter’s vision of the international civil servant as defined in article 100, whose wages would equal the world’s best-paid national civil servants under the Noblemaire principle. Resolution 302 accordingly directs the UNRWA Commissioner-General to ‘select and appoint his staff in accordance with general arrangements made in agreement with the Secretary-General’, not under the UN staff regulations and rules verbatim. UNRWA thus maintains distinct regulations and rules for its area staff.

UNRWA was not mandated to pursue repatriation or resettlement of Palestine refugees. The General Assembly vested that responsibility in the UN Conciliation Commission for Palestine. The UNCCP has been moribund since concluding in 1951 that it had become ‘impossible…to carry out its mandate’ because the concerned states were unwilling to implement the terms of relevant General Assembly resolutions, including Israel’s refusal to allow the repatriation of Palestine refugees. And thus UNRWA’s works programmes have toiled on. The raison d’etre of the works programmes today, to the extent they retain one, is purely Realist: conflict management in the absence of a political horizon (‘regional stability’ in American English). In that context, UNRWA today employs over 30,000 staff members, of whom roughly 300 are international staff. The remainder are Palestinian area staff. Over 90 percent are Palestine refugees themselves.

As I have said elsewhere, the events of 7 October were heinous acts of violence and the participation of certain UNRWA staff in those acts, if confirmed, is inexcusable. Two of the staff allegedly involved were reportedly killed and one is unaccounted for. UNRWA dismissed the other nine staff members shortly after an Israeli diplomat informed the UNRWA Commissioner-General that Israel had evidence of their involvement in the attacks, although Israel has not shared that evidence with UNRWA or the UN Secretariat’s investigative office. Nor has any donor state, including the United States, independently verified Israel’s claims, as one might expect given its recent history of unsubstantiated claims. The Agency has since said these staff members were ‘preemptively dismissed.’ This ‘preemptive dismissal’ was politically necessary for UNRWA: the US called it a ‘crucial first step’ towards restored funding. But it is dubious as a matter of UN practice.

‘Preemptive dismissal’ and the UN Internal Justice System

The UN and UNRWA staff regulations and rules do not authorise the Secretary-General or the UNRWA Commissioner-General to fire staff preemptively for alleged misconduct, even that causing grave reputational or financial harm. The most severe disciplinary measure in the UN regulatory framework, dismissal, follows an investigation, notice of substantiated allegations and an opportunity to respond. A former Assistant Secretary-General who misappropriated over $60 million in UN funds was kept on administrative leave for a year while this investigative and disciplinary process played out. When presented with credible allegations of grave misconduct that, if proven, would constitute crimes of a serious nature, UN practice is to suspend staff without pay pending investigation and to refer potential crimes to national authorities through its Office of Legal Affairs upon the completion of internal investigative processes. The UN legal framework for criminal accountability of staff is based on resolution 62/63 of 2007, wherein the General Assembly recalled the ‘original intent of the Charter of the United Nations [was] that United Nations staff and experts on mission would never be effectively exempt from the consequences of criminal acts committed at their duty station, nor unjustly penalized, without due process’.

UNRWA’s preemptive dismissal of these area staff without due process is more akin to the UN’s policy, endorsed by the Security Council, of repatriating entire national military contingents assigned to UN peacekeeping missions where the contingent is credibly alleged of widespread sexual exploitation. The key difference is that these military personnel are not UN staff within the meaning of the 1946 Convention on the Privileges and Immunities of the United Nations (the ‘General Convention’). Troop-contributing states retain exclusive jurisdiction to investigate and prosecute alleged criminal conduct of members of their national contingents while on UN duty. The UN is not a state and cannot criminally prosecute its staff. Rather, under the General Convention the Organisation must ‘co-operate at all times with the appropriate authorities of Members to facilitate the proper administration of justice’ by referring crimes of a serious nature committed by UN staff and providing appropriate assistance with national investigations and prosecutions in a manner consistent with its privileges and immunities.

Obligations Without Rights

This preemptive dismissal further distinguishes and subordinates UNRWA’s Palestinian area staff relative to their international staff colleagues and nationally-recruited staff of UN system organisations.

In 2011, the United Nations Appeals Tribunal upheld the Agency’s practice of paying hazard pay to its international staff but not its Palestinian area staff. The Tribunal stated that UNRWA area staff were historically excluded from the UN common system of salaries, allowances and benefits because they ‘are refugees providing to their fellow refugees governmental-type services, which they could continue to provide as civil servants upon the just resolution of the question of Palestine refugees and the termination of UNRWA’s mandate.’ UN records from the relevant period do not conceptualise Palestine refugee labourers as national civil servants-in-waiting. However, UNRWA’s Commissioner-General has similarly stated that UNRWA uses host government salaries as comparators for area staff salaries because ‘under a political solution, it was hoped that UNRWA staff would transition into Palestinian public institutions’. UN subsidiary organs auto-determine their mandates in the first instance, subject to the parent organ’s ultimate decision, just as the principal organs auto-determine their jurisdiction ‘in the first place’. Thus the Commissioner-General’s statement of policy that UNRWA area staff should transition into Palestinian public institutions might now be considered an element of UNRWA’s mandate.

Moreover, UNRWA area staff are not within the security umbrella of the UN Department of Safety and Security, as their international staff colleagues are. As of writing, 152 UNRWA area staff have been killed in the current Israeli offensive.

And yet, owing to the cottage industry of UNRWA watchdog groups, the Agency’s Palestinian area staff face greater scrutiny for compliance with the standards of conduct of the international civil service than virtually any other UN staff, national or international, anywhere in the world. While UNRWA area staff are not international civil servants, the area staff rules declare that a failure to observe standards of conduct of the international civil service constitutes misconduct. This means UNRWA’s 30,000-plus Palestinian staff ‘do not have the freedom of private persons to take sides or to express their convictions publicly on controversial matters’. Considering that Israel has long banned all Palestinian political factions by military order and UNRWA’s largest donors have proscribed most Palestinian political factions except Fateh, these quasi-national, quasi-international area staff are always vulnerable to the claim that their personal political views, even expressed with the requisite ‘tact and discretion’, constitute support for terrorism.

Delegitimizing Staff, Delegitimizing UNRWA

Delegitimising UNRWA staff who are themselves Palestine refugees and UNRWA beneficiaries inherently delegitimises UNRWA as an organisation. It also creates a permission structure for conduct which jeopardises the Agency’s beneficiaries, staff, premises and other assets. The Government of Israel has made no secret of its contempt for the UN, which its ambassador to the Organisation recently said ‘no longer holds one ounce of legitimacy or relevance’. But it considers UNRWA uniquely contemptuous (given UNCCP’s demise) for a simple and longstanding reason that UNRWA’s mandate corresponds to registered Palestine refugees and not simply to Palestinians needing aid. In the Israeli telling, UNRWA thus reifies Palestine refugee status, creates false hope of their mass repatriation to their former communities in present-day Israel, and hampers ‘realistic solutions’ to the refugee question, i.e. resettlement in host states or third states. To paraphrase the saying misattributed to Ben-Gurion, the old have died and the young would have forgotten but for UNRWA. That’s why Israel’s prime minister said that ‘UNRWA’s mission has to end’, as opposed to its humanitarian assistance: delegitimising UNRWA is the predicate to reassigning responsibility for the welfare of Palestinians to ‘legitimate’ international organisations, meaning those which will disperse aid without regard to Palestine refugee status, and thus without implicit reference to the rights of Palestine refugees as affirmed in resolution 194.