Last Tuesday, UNRWA found terrorist rockets in one of its Gaza facilities.
There is no dispute that having those rockets in their facilities was a gross violation by the terrorists of the UN facility's inviolability.
No one is saying that the head of the UNRWA facility or its spokesman Christopher Gunness, knew of the rockets and there is no question that if he had, it would have been a gross neutrality violation, and some would say, could even turn the UN facility into a military target.
Finally, there is no dispute that the UN has said that it turned over the rockets to persons sent by the "new Palestinian national unity" officials following a call from UNRWA to unity officials in Ramallah. After that, almost everything is highly disputed.
The dispute starts with what "unity" officials means.
Despite the recent Fatah-Hamas national unity deal, there is no public record of Fatah or any non-Hamas controlled "unity" officials running a security force in Gaza since the 2007 Hamas takeover.
UNRWA believes it fulfilled its obligations by discovering the rockets in an inspection, and said it was told the rocket pickup team included bomb squad members, ostensibly to eliminate the rockets, but was vague on what ultimately happened with the rockets.
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Put differently, there is a strong likelihood that whoever picked up the rockets, whatever they called themselves, cooperates with Hamas or otherwise returned the rockets to Hamas (though there is no hard proof.)
On what UNRWA should have done and did once it found the rockets, the views range from it had virtually no better options to it at most merely violated good-faith neutrality ethics to it could be criminally liable as an accomplice to war-crimes.
Hebrew University Professor and former Foreign Ministry Legal Advisor Robbie Sabel said that UNRWA had no legal obligation to hand the rockets over to Israel.
He said that it was troubling that UNRWA handed the rockets back to Hamas (he presumed that was the rockets ultimate destination regardless of who picked them up), but asked rhetorically what else could they have done?
Sabel noted that the UNRWA officials had no training or capacity to destroy the rockets themselves or to give them to Israel and that keeping the rockets on-site was not an option as that could even turn the UN facility into a military target.
Speculating, Sabel said that maybe UNRWA could have asked UN headquarters for instructions or moved the rockets to an open field, communicating the location to the IDF to target.
But he said neither of these were realistic solutions, as UN headquarters would not be able to change the situation on the ground and probably UNRWA did not have any functional ability to move 20 heavy rockets anywhere – especially with such movement possibly leading to retaliation from Hamas for taking the Israeli side.
Sabel said he would not "make a capital case out" out of how UNRWA had the rockets removed and would focus on the initial fact of there being there illegally, and strongly opining that some of the local Gaza UNRWA workers "must have known," making the UN responsible even if Gunness did not know.
Going a step beyond that view, some have said while there was no technical legal prohibition for UNRWA to hand over the rockets in a way which could (maybe did) end up with Hamas, the transfer clearly violated all ethical principles of neutrality.
Professor.Mordechai Kremnitzer, Israel Democracy Institute Vice President and a former top university and IDF legal official, went much further calling UNRWA's actions unambiguously a "war crime."
Kremnitzer said that any attempted defense by UNRWA that it transferred the rockets to neutral unity officials was "preposterous" because "it ignores the reality" on the ground in which the unity government "has no effective control over Gaza or Hamas."
Accordingly, said Kreminitzer, the rockets were functionally given to Hamas, a terror organization which fires rockets indiscriminately at civilians – making the transferors, UNRWA, complicit in Hamas' war crimes.
He reasoned that giving the rockets to "unity" officials was either "extremely foolish" or an "intentionally evil" act, and that he does not think UNRWA is foolish enough to be absolved of culpability.
Questioned about what else UNRWA could have done, he said that UN headquarters could have explained to them how to disarm the rockets even if they did not have that knowledge themselves and surmised that if UN headquarters asked Hamas for a temporary ceasefire to arrive at the facility to handle the issue, that might have worked.
Kremnitzer also argued that if UNRWA had informed Israel, Israel would not have attacked and holding onto the rockets could have been a way to prove later war crimes allegations against Hamas before the International Criminal Court.
He said he recognized that UNRWA was in a difficult situation, but that giving the rockets to Hamas (which is what he believes ultimately inevitably occurred) was not one of UNRWA's options if it was going to honor its neutrality obligations, and that it would have been better for UNRWA to risk their own lives trying to disarm the rockets.
Asked if UNRWA's actions could be criminally excusable (leading to a lesser punishment if prosecuted), even if they were not fully justified, Kremnitzer stated that there would be no criminal prosecution since it could never be criminally proven that the particular rockets were used.
Despite that fact, he said that he thought even in desperately hard circumstances, UNRWA's actions were inexcusable since the rockets are used to fire at civilians.
The UN-Israel relationship has long been a difficult one and no doubt disparate interpretations of this incident will only continue that tradition.
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