Those living in major international centers, like New York City, where embassies and international organizations are located, may have some exposure to the vagaries of immunity claimed by diplomats and their staffs. Whether it’s seeing a car with diplomatic plates carelessly parking illegally or learning that they can’t necessarily be sued, it can be a trying experience.

It would appear though that the United Nations Relief and Work Agency for Palestine (UNRWA) has reached a new low. In a lawsuit filed in the New York Federal District Court, on June 24, 2024, against UNRWA and others for damages suffered by so many as a result of UNRWA employees participating in the October 7th massacre, the UN defendants are claiming immunity and moving to dismiss.

If this wholly unjust position were not immoral and absurd enough, the US Department of Justice has reportedly weighed in and shockingly told the Court, “Because the U.N. has not waived immunity in this case, its subsidiary, UNRWA, retains full immunity, and the lawsuit against UNRWA should be dismissed due to lack of subject matter jurisdiction”.

Why is this callous and conclusory statement relevant to the question of whether UNRWA and its employees are responsible for their outrageous criminal acts? It’s little more than a galling non-sequitor.

To put this in perspective, consider that UNRWA employees do not have absolute immunity as a matter of law. The Convention on the Privileges and Immunities of the United Nations, as to UN officials (other than the Secretary General and Assistant-Secretaries General) and experts performing missions for the UN, expressly provides only for limited functional immunity (under Articles V-Section 18 and VI-Section 22); not unlimited immunity. In essence, when acting in a official capacity and performing their job, they have immunity. Is anyone suggesting their job description includes committing murder, rape, kidnapping and other atrocities?

How then can anyone blithely assert that there’s immunity? Not only is this not a case remotely worthy of any consideration of an assertion of functional immunity, it should be reviled as a depraved and fatuous claim of what amounts to dysfunctional immunity. The conduct complained of is reprehensible and the wrongdoers should be penalized to the full extent of the law.

Even UNRWA has, in effect, taken the position that its employees do not have unlimited blanket immunity. Thus, in the case of Saqer v Commissioner-General of UNRWA (before the UNRWA Dispute Tribunal-Judgment dated August 15, 2021), one of its employees demanded UNRWA assert immunity on her behalf to defeat an obligation she had undertaken to a Jordanian hospital for the cost of treating her husband’s self-inflicted wound. UNRWA flat out said there was no immunity. This was hardly a case of her acting in an official capacity within the purview of her employment.

The German Federal Court of Justice has gone even further in defining the limits of functional immunity. It has held that there is no immunity for committing war crimes like genocide, torture and enforced disappearance.

US law (22 USC 288d) also accords officers and employees of international organizations functional immunity (i.e. ‘…immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees…’), not absolute immunity.

It should also be noted that the President is authorized under US Law (22 USC 288) outright to revoke even these limited protections afforded UNRWA under this law, because in the President’s judgment it’s justified by reason of abuses by UNRWA or its officers or employees of any of the privileges, exemptions or immunities provided under the law.

It is hard to imagine a more blatant case of atrocious and contemptible abuses than the ones that occurred on October 7th. The President can and should revoke any immunity. In addition, the President should act to defund UNRWA. As an affiliate of Hamas, a designated Foreign Terrorist Organization, it should also be sanctioned and funding it or offering it other material support should be prohibited under the anti-terrorism law covering Hamas (18 USC 2339).

The fact that our government appears to be assisting UNRWA in evading responsibility for the illicit and criminal conduct of its officers and employees is intolerable. We cannot condone, let alone reinforce these abuses.

Israel is fighting the evil that is terrorist Hamas and its fellow terrorist Iranian regime proxy, terrorist Hezbollah, on the battlefield, in a war that is being waged not only against Israel, but also the US. It is in effect the US’ human shield in the Middle East.

This battle against evil is also being waged in the US courts. The US is duty bound to do its best to advocate for its citizens and those of its ally and friend Israel, who have been profoundly harmed by those enemies and their cohorts.

We may not passively yield and surely not actively participate in a miscarriage of justice. Much like the clarion call of Genesis 4:10, the blood of our bothers and sisters cry out and may not be ignored or forgotten.

We must fight any obnoxious claim of immunity and pursue justice. Indeed, it’s time to defund and disband UNRWA.

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.