UNRWA’s immunity from tort claims

During the Swords of Iron War, it became evident that employees of the United Nations Relief and Works Agency (UNRWA) were working for Hamas and had participated in the October 7 massacre. Hamas also used UNRWA buildings (such as schools) for its terrorist activities against Israel. Tort claims in this regard have been filed against UNRWA in Israel and in the United States. The preliminary question shared by these lawsuits is the question of UNRWA’s immunity. An important development in the United States in this regard might affect the proceedings underway in Israel.

The immunity of the United Nations in Israel is enshrined in the United Nations’ Immunity and Privileges Ordinance, and in an order issued under the ordinance, in which the Israeli Foreign Minister granted the United Nations full immunity from “prosecution and legal action.” This ordinance implements the Convention on Privileges and Immunities of the United Nations, which Israel signed upon its admission into the United Nations.

The question is whether UNRWA is also immune from lawsuits against it by virtue of the Immunity Ordinance.

A similar question arose in a lawsuit in the United States – Tamar Kedem Siman-Tov v. UNRWA, in the Manhattan federal court in New York. On April 24, the U.S. Department of State filed its position with the court, whereby UNRWA does not constitute an “organ” or “subsidiary body” of the UN (pursuant to Article 7 of the UN Charter), but rather, is a “specialized agency” and therefore, it should not be granted automatic immunity as a derivative of the UN’s general immunity. Accordingly, it is highly likely that the Manhattan federal court will allow the Department of State’s position and rule that UNRWA does not have immunity.

During the Knesset deliberations on the draft bill Cessation of UNRWA Activities Law of  2024, officials from the Ministry of Foreign Affairs and the Ministry of Justice expressed the position that the charter does apply to UNRWA’s activities. However, it is highly likely that these ministries will reconsider their position in light of the US Department of State’s position. In this case, it is very possible that the court will rule that UNRWA does not have immunity in Israel, since the courts usually tend to accept the position of the political echelons on these issues. If they do, tort claims against UNRWA will be able to proceed.