Leonard Grunstein
Leonard GrunsteinINN:BG

The pending case instituted by South Africa against Israel before the UN International Court of Justice (ICJ) is a cruel mockery of justice.

Hamas actually invaded Israel intending to commit the horrendous crime of genocide against Jews. To claim that Israel by defending itself in accordance with the laws of war, seeking to free the hostages taken by Hamas and trying to prevent Hamas’ threatened renewal of its murderous rampage and unspeakable atrocities is somehow committing genocide is an incoherent moral inversion. Yet, South Africa brazenly brought this absurd case before the ICJ. Issues have been raised about its motives including its close ties to Hamas and the terrorist Iranian Regime that backs Hamas.

In its order of interim relief, on January 26, 2024, the ICJ did not grant South Africa’s demand that an immediate ceasefire be ordered. The ICJ also noted it was “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups”. It went on to call “for their immediate and unconditional release”.

The legal aspects of this matter have become even more complicated given the recent disclosures about staff members of UNRWA, who reportedly actively participated in the October 7, 2023, Hamas massacre of Jews and others in Israel. UNRWA’s summary firing of some of these staff members and the announcement that an urgent and comprehensive independent review of UNRWA will be conducted is an implicit admission of wrongdoing.

However, this is just the tip of the iceberg, as reported in a joint Hearing of the House Foreign Affairs Subcommittee on Oversight and Accountability under the Chairmanship of Representative Brian Mast and Subcommittee on Global Health, Global Human Rights, and International Organizations, under the Chairmanship of Representative Chris Smith, on January 30, 2024.

It appears that a dozen UNRWA employees directly participated in the October 7th massacre and that as many as 15% of UNRWA employees in Gaza might be members of Hamas or other terror groups.

This puts the revelation by Hillel Neuer’s UN Watch of the details of how UNRWA teachers in a 3,000-member UNRWA staff Telegram group cheered and celebrated Hamas’s October 7th massacre in a completely different light,

It is also reported that the UNRWA staff in the group shared photos and video footage of those events and prayed for the terrorists’ success and for Israel’s destruction, in clear violation of UN rules.

It should be noted that UNRWA reportedly has approximately 13,000 employees in Gaza, earning an average of over $120,000 per year and with executive salaries averaging in excess of $225,000 per year. All this to indoctrinate generations in a culture of Jew hatred, terrorism, misogyny, racism, intolerance and victimhood that eschews progress and personal responsibility and instead embraces martyrdom - and now even to participate personally in perpetrating murderous acts, unspeakable atrocities and kidnappings.

A bipartisan letter to Secretary of State Blinken, dated January 30, 2024, is reportedly being circulated by Representative Josh Gottheimer, which is said to be co-signed by Representatives Claudia Tenney and Ritchie Torres. Besides calling for the resignation of UN Secretary-General Antonio Guterres and UNRWA Commissioner-General Phillipe Lazzarino, it goes on to state:

“It is unacceptable that U.S. tax dollars, allocated to assist innocent Palestinians, instead funded tunnels under UNRWA buildings and paid for terrorists to murder, rape, kidnap and hold innocent civilians hostage.”

UNRWA’s involvement with Hamas and the commission of crimes against humanity elevates these matters to an even higher level of concern. In this regard, it should be noted that unlike the US, EU and many other nations, which suspended their funding of UNRWA in light of these serious revelations, South Africa has not done so.

As more disturbing facts come to light about the nature and extent of ties between Hamas and UNRWA, including the reported almost interchangeable personnel of both organizations and their shared culture of Jew hatred and criminality, it suggests that UNRWA might be so compromised that it is arguably just an alter ego of Hamas in Gaza. At the very least UNRWA appears to be a party supporting and/or cooperating with Hamas in the achievement of its nefarious goals.

Remember that under the doctrine of respondeat superior, an employer is liable for the wrongful acts of employees, acting within the scope of their employment. This includes if the employee's action is common enough that it could fairly be deemed to be characteristic of the job. Given the culture of Jew hatred, terrorist affiliation of so many of the employees, it is arguable that UNRWA is liable. However, these claims may not be brought in an ordinary court in the US, because the UN enjoys legal immunity pursuant to its Charter and as embodied in the Convention, dated February 13, 1946, on the Privileges and Immunities of the UN (Convention), acceded to by the members.

This poses a most intriguing issue, in what appears to be a case of first impression. The UN, through its agency UNRWA, is a likely wrongdoer and should be joined as a third-party defendant (impleaded) in the case. In a normal circumstance, Israel could just implead UNRWA into the pending ICJ case brought on by South Africa.

It is submitted that the UN can and should accede to jurisdiction by the ICJ, under Article VIII of the Convention, to hear a claim against the UNRWA, as the judicial organ of the UN established to enforce treaties. To do otherwise would undermine any shred of remaining credibility that the UN might still possess.

However, there is also the problem of the ICJ, as an organ of the UN, the parent of UNRWA, having a fundamental, profound and irremediable conflict of interest that would prejudice its independence as a tribunal hearing the case. It is suggested the better remedy would be for the UN to waive immunity and submit to US federal court jurisdiction in any claim asserted by Israel against UNRWA.

The sordid role of UNRWA in this horrible tragedy also put into question South Africa’s continued commitment to funding UNRWA. So many countries like the US, UK, Germany, Italy, the Netherlands, Switzerland, Japan, France, Australia, Canada and Finland have suspended funding because of the malign activities noted above, but not South Africa.

Given the conflict noted above, it adds another reason why the ICJ should recuse itself and dismiss the case. After all, the UN is pressing everyone to restore funding. Doesn’t this further prejudice the ability of a UN tribunal fairly to hear and decide the case or at least give the appearance of a conflict that is disqualifying?

The funding of UNRWA raises other issues as well. Hamas is a designated Foreign Terrorist Organization under US law. Australia, Canada, the European Union, Japan and the UK have also all designated Hamas as a terrorist organization.

Funding or providing material support or services to a terrorist organization is generally prohibited and the subject of severe criminal penalties.

Furthermore, the taking of hostages is prohibited by Treaty (embodied in the International Convention against the taking of hostages, dated December 17, 1979), acceded to by members of the UN, including South Africa. Similarly, there is the Treaty prohibiting the financing of terrorism (embodied in the International Convention for the Suppression of the Financing of Terrorism, dated December 15, 1997) and the Treaty criminalizing the use of an explosive or incendiary weapon or device that has the capability to cause death, serious bodily injury or substantial material damage as was done by Hamas on October 7th.

Most relevant though for this analysis is that the criminal offender is not only the person on the point who directly commits the offence. It also includes those who organize or direct others to commit the offence covered under the Treaty or in any other way contribute to the commission of one or more offences by way of persons acting with a common purpose.

It is respectfully suggested that Israel should assert a counterclaim against South Africa arising out of the malevolent actions of Hamas, based on South Africa’s providing of material support and services to Hamas, including, directly or indirectly, through its funding of UNRWA. The Iranian Regime should also be impleaded as a third party defendant in the ICJ case for violating these Treaties. Besides their potential criminal exposure, there are also likely civil claims against them for the untold billions and perhaps trillions of dollars in damages arising out of or relating to Hamas’ wrongful actions, for which they are in no small measure responsible.

The US should also proceed against UNRWA and the employees who committed these wrongs. This includes not only defunding UNRWA but also prosecuting the wrongdoers under the Palestinian Anti-Terrorism Act of 2006. The Taylor Force Act must also be vigorously enforced to prevent the PA’s plan to reward the October 7th terrorists under its Pay to Slay program and to curtail any further funding of UNRWA given its role in providing material support and services to terrorist Hamas. This includes US agencies, NGO’s or those misguided souls who might otherwise mistakenly continue to fund UNRWA.

Indeed, UNRWA itself should be designated a terrorist organization..

The US and the other nations, which suspended funding of UNRWA, should also do the right thing and join in defending Israel at the ICJ. If we are to have a society of nations based on respect for the rule of law then we must be devoted to doing so and not be silent in the face of injustice of a miscarriage of justice.

May Israel be vindicated, the evil that is Hamas and its cohorts be eradicated and the hostages and valiant soldiers of the IDF be returned safely home.

Leonard Grunstein, retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He founded Project Ezrah and serves on the Board of Bernard Revel at Yeshiva Univ. and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal and more.