The United Nations has refused to waive immunity from prosecution for its subsidiary, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), after victims of Hamas’s October 7, 2023, attack brought suit in the Southern District of New York under the Alien Tort Claims Act. The Act, dating to 1789 but codified in 1948, gives federal district courts the authority to hear civil lawsuits filed by foreign nationals for torts that violate international law or a U.S. treaty.
While families of victims seek avenues of justice against the perpetrators of the massacre, the U.S. Department of Justice had to concede that it cannot force the U.N. to require its officials to be defendants in U.S. courts, saying, “In light of the United Nations’ immunity, the Court lacks subject matter jurisdiction over the United Nations.”
Much as diplomats receive automatic immunity under Article 31 of the Vienna Convention on Diplomatic Relations, so, too, do workers from international organizations like the U.N., International Monetary Fund, and World Trade Organization, among others.
While the U.N. Secretary-General need not waive immunity for his employees or agencies, the integrity of the organization requires it.
Indeed, the U.N. position is increasingly untenable. It has deferred prosecution of U.N. peacekeepers guilty of child sexual abuse to their home countries, many of which subsequently declined to punish the offenders. After U.N. peacekeepers caused a cholera epidemic in Haiti that killed thousands, the U.N. shirked responsibility despite the criminal negligence of those involved. While these cases involve foreign officials deployed by the U.N. to other countries, the U.N. approach to UNRWA is unique in that it primarily employs local employees to serve their own communities. Creating broad immunity, therefore, creates a class that stands above any law.
In April 2024, Israel informed UNRWA that 19 of its staff members participated in the October 7 attacks. On August 5, 2024, the U.N. Office of Internal Oversight Services concluded that evidence against nine of the 19 UNRWA employees “could indicate that [they] may have been involved in the attacks,” and recommended termination. Such firings offer little solace for families of victims.
The plaintiffs accused both UNRWA and specific employees of aiding and abetting Hamas. Without addressing the complaint’s merits, the U.N. invoked UNRWA’s “absolute immunity from prosecution.” It misrepresents the limits of that immunity.
The 1946 U.N. Convention on Privileges and Immunities only grants U.N. officials immunity from prosecution if their actions are “in the interests of the United Nations” and “not for the personal benefit of the individuals themselves.” The Convention is clear that U.N. Secretary-General António Guterres not only has the right, but also the duty to waive immunity if that immunity would “impede the course of justice and can be waived without prejudice to the interests of the United Nations.”
The motivation for the Secretary-General’s refusal to waive immunity is likely a desire to protect the U.N. from the exposure of a court investigation. The organization cannot plead ignorance.
Fifteen years ago, outgoing UNRWA General Counsel James Lindsay published a report documenting UNRWA’s close ties with Hamas. After Hamas staged its 2006 coup in Gaza, killing and maiming Fatah opponents to consolidate power, he reported, “UNRWA continued its campaign to convince the West, particularly Europe, to ‘encourage’ and ‘engage with’ Hamas.” In 2007, UNRWA accused the United States and European Union of being undemocratic for refusing to fund the Palestinian leadership despite the presence of Hamas, a designated terror group whose covenant calls for genocide against Jews.
He reported UNRWA neither had a policy to prohibit and discourage hiring Hamas members, nor did it check the backgrounds of Palestinian applicants. In 2004, UNRWA Commissioner-General Peter Hansen said that UNRWA “demand[s] of our staff, whatever their political persuasion is, that they behave in accordance with U.N. standards and norms for neutrality,” while acknowledging, “Hamas members [are] on the UNRWA payroll, and I don’t see that as a crime.”
The United States need not defer to the United Nations. The U.S. government has a compelling interest to suppress terrorism. Under the Antiterrorism and Effective Death Penalty Act, i
[I]t is illegal for Americans to ‘knowingly provide material support’ to a foreign terrorist organization.
In 2010, the Supreme Court held in Holder v. Humanitarian Law Project that a “foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate, and disrupt. This possibility is real, not remote.” It is also illegal to give foreign terrorist organizations training in international law or provide funding for any “legitimate purpose” of the group for fear that they would use the system to further terrorism.
Accordingly, the United States could argue it is a violation of U.S. law to fund UNRWA if it knowingly includes Hamas members in its ranks, regardless of any legitimate function they perform for UNRWA.
The August 2024 U.N. Office of Internal Oversight Services findings are the tip of the iceberg; there appears now to be evidence suggesting complicity by several hundred other employees.
Reflecting on the Privileges and Immunities Convention, not waiving immunity in this case would “impede the course of justice,” for both the victims and people of all nations who rely on the integrity of the U.N. to bring stability to the world.
