In January, reports emerged alleging the involvement of United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) employees in the October 7, 2023 attack conducted by Hamas. Reacting to it, several state parties, including Canada, suspended funding to UNRWA, an institution that is considered a vital lifeline in Gaza.
Ahmed Hussen, the minister of international development in Canada, released an official statement, saying, “Canada has temporarily paused any additional funding to UNRWA while it undertakes a thorough investigation into these allegations.” Against the backdrop of this suspension and the recent ICJ ruling, this article seeks to analyze whether Canada’s decision to suspend funding to UNRWA contravenes its obligation to prevent genocide.
Significance of UNWRA
UNWRA was created by the UN General Assembly in 1949. It is the largest aid agency, with 13,000 employees working in Gaza; 87% of the people living in Gaza are dependent on the services of UNRWA. Currently, 2 million displaced Palestinians in Gaza are seeking refuge in or near UNRWA’s camp.
The primary source of UNWRA’s revenue comes from voluntary donations made by state parties. The impact of cutting the funding is not certain at the moment, but it is expected that this move will further deepen the existing acute humanitarian crisis in Gaza in the upcoming weeks. Reacting to the state’s decision to suspend funds, UNRWA, the United Nations, and other NGOs have raised concerns regarding the humanitarian assistance mission in Gaza. These concerns become more serious given the World Health Organization (WHO) report that stated 93% of the population in Gaza is facing crisis levels of hunger.
Allegations on UNWRA
On January 18, an Israeli diplomat informed UNRWA chief Philippe Lazzarini that Israel has evidence regarding the involvement of UNRWA employees in the October 7 attack in Israel. On January 26, UNWRA suspended all the employees in question and announced the start of an investigation against them for accountability, including criminal prosecution. Simultaneously, United Nations Secretary General Antonio Guterres also appointed an independent panel to investigate the matter. Remarkably, UNWRA and UN’s announcement came before states decided to suspend their funding.
It is also important to highlight that to date Israel has not shared any evidence to back the claim to the UN or the UN Office of Internal Oversight Services (OIOS), the legal body tasked with carrying out the internal investigation. According to Israel, sharing the evidence would reveal its sources and there is no necessity to do so. Israel’s position has received backing from the United States, which asserts that the allegations are highly credible. However, the US has stated that it is unable to investigate independently.
UNWRA has not made any comments on Israel’s refusal to share the evidence. However, UNWRA’s spokesperson stated that the decision to terminate the employees in question was made due to the seriousness and timing of the allegations and not because they had credible evidence against the employees.
ICJ’s Ruling on Israel
The decision to suspend the funding to UNRWA becomes questionable because the decision came immediately after the ICJ’s ruling in the case of South Africa. v. Israel. In this case, the ICJ found plausible claims of violations of the Genocide Convention by Israel and ordered Israel to ensure that humanitarian aid to Gaza is increased.
Although the ICJ’s decision is directed toward Israel, the decision also affects other parties of the genocide convention, including the countries in question, due to the erga omnes character of the genocide convention as mentioned by the ICJ in The Gambia v. Myanmar and reiterated in South Africa. v. Israel: “[T]he obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case.”
Duty to Prevent Genocide
Article I of the Genocide Convention lays an obligation to prevent and punish genocide on the parties to the convention. To understand whether Canada’s action is in contravention of the duty to prevent genocide, it is important to analyze two aspects.
(1) Whether the duty to prevent was established at the time of decision. Here, the primary contention is assessing the time frame when the duty to prevent starts. The ICJ in the case of Bosnia and Herzegovina v. Serbia and Montenegro, stated that the “State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” This case makes it clear that the threshold for triggering the duty to prevent genocide is the existence of “serious risk.”
Now, in South Africa. v. Israel, Judge Nolte, while referring to the statement made by the Israeli officials, stated, “Such statements may contribute to a ‘serious risk’ that acts of genocide other than direct and public incitement may be committed, giving rise to Israel’s obligation to prevent genocide.”
This observation is sufficient to prove that the threshold of “serious risk” has already been met after the ICJ’s ruling. Therefore, all the parties of the Genocide Convention, including Canada, were obliged with a duty to prevent genocide in Gaza at the time they suspended the funding to UNRWA.
(2) Whether the decision is in contravention of the duty to prevent genocide. The duty to prevent requires states to imply all reasonable measures available to them to prevent genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Here, the primary consideration is the conduct of the states and not the result. This means that irrespective of whether the state was able to prevent genocide, the essential element is that states took all the measures within their power to prevent genocide.
It is problematic to identify which actions are essential to satisfy the obligation of duty to prevent due to its contextual nature. Therefore, the ICJ has stressed the notion of due diligence for the assessment of their actions (Bosnia and Herzegovina v. Serbia and Montenegro) and subsequently obliges states to interrogate their actions and choose a course of conduct.
On the question of whether the decision to pause funding to UNWRA was made with due diligence, it is important to look into the following factors.
(i) Nature of allegations. There is no doubt that the allegation made against UNRWA is serious and grave, but it is equally important to note that no evidence has been provided to back such allegations. The decision to suspend funding on the allegation on a dozen out of 13,000 employees without significant evidence does not appear to be a step taken with due diligence. If the allegation is true, the decision to defund the whole organization still defies the ICJ’s order.
(ii) Response of UN and UNWRA. UNRWA and UN responded promptly to the allegations and terminated the accused employees and initiated an investigation against them. Their response appears to be timely and as per their code of conduct.
(iii) Canada’s previous stance concerning allegations against UN employees. There have been previous instances when allegations have been made against UN officials, specifically UN Peacekeepers. In those instances, Canada’s position has been different from the current position. Rather than suspending or cutting funds, Canada preferred calling for accountability—an approach that most of countries have taken in the present case. Canada has not provided any reason behind the change in its approach, which further raises the question of due diligence.
Based on the above-mentioned factors and looking into the significance of UNRWA’s mission in Gaza and the observation of ICJ that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further, Canada’s decision to suspend funding does not appear to be a step taken with due diligence, thereby failing in its duty to prevent genocide.
Conclusion
It is non-debatable that the allegation against UNRWA employees is grave. However, at this point, there is no concrete proof against such allegations. Moreover, those employees were sacked immediately by UNRWA. Despite this, Canada’s decision to suspend funding to UNRWA immediately after ICJ’s judgment appears to violate the duty to prevent genocide. It looks more convincing since Canada took a completely different position in the present case as compared to its previous stand on allegations against UN Peacekeepers. This further raises the question of whether Canada could be held liable for complicity in genocide.
Nabil Iqbal is a Human Rights Lawyer currently pursuing a Master of Human Rights Degree at the University of Manitoba, Canada. Syeda Mehar Ejaz is a graduate of the Schulich School of Law, Dalhousie University, Canada.
