Israel’s Foreign Ministry spokesman Emmanuel Nachshon revealed that the United Nations Development Program (UNDP), whose employee Wahid Abdullah Borsch, 38, has confessed to working for Hamas, using the international agency’s budget to promote terrorism against Israel, on Wednesday sought Borsch’s release on the grounds that he had diplomatic immunity. Nachshon said the claim had been examined by jurists who determined it is “unsubstantiated.”
Borsch, a resident of Jabaliya in the Gaza Strip, was arrested in July on suspicion of using his employment by the UNDP to carry out missions for Hamas. UNDP is engaged in housing and development projects for the Gaza population, including renovating homes damaged in the military conflicts with Israel. In his interrogation Borsch revealed that he diverted UNDP resources to building a clandestine marina in the northern Gaza Strip in 2015, to be used by the Hamas military arm. Borsch also confessed to influencing his superiors at UNDP to prioritize the rehabilitation in areas where Hamas seniors lived — following instructions he had received from Hamas.
Israel’s UN envoy Danny Danon was contacted by the UN legal office which claimed that UN employees are entitled to diplomatic immunity from prosecution by local authorities and that Borsch should receive UNDP visitors until he is released.
Danon, for his part, contacted the international aid organizations in Gaza with the message that “any dollar spent, and any local hire by an international organization, must be monitored [to] ensure they fulfill the purpose of aiding the residents of Gaza and not funding terror activities.”
The 1946 Convention on the Privileges and Immunities of the United Nations, and 1947 Convention on the Privileges and Immunities of the Specialized Agencies, contain privileges and immunities for three categories of persons crucial for the work of the Organization: 1) representatives of Member States; 2) United Nations officials; and 3) experts on missions for the United Nations.
While Member State representatives enjoy modified diplomatic privileges and immunities, United Nations officials, i.e. permanently employed staff members, enjoy “functional” immunity which is defined as immunity “from legal process in respect of words spoken or written and all acts performed by them in their official capacity.”Article V, section 20, stresses that “…privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves” and that the Secretary-General has to waive the immunity of United Nations officials where it would “impede the course of justice and can be waived without prejudice to the interests of the United Nations.”
The UNDP demand in Borsch’s behalf might be a case of providing immunity post facinus, literally: after the crime has been committed, because, as opposed to United Nations officials, experts on missions for the United Nations, or members of United Nations peacekeeping operations, serve under a temporary and specific mandate and enjoy only certain functionally limited privileges and immunities pursuant to article VI of the General Convention. They are most likely not immune from criminal prosecution.