Case to Watch: Kedem v. UNRWA

UNRWA sign in Tyre

Israeli victims of the October 7 massacre, and the estates of victims who were killed, have brought a lawsuit against UNRWA and some of its officials in New York, accusing them of aiding and abetting Hamas in committing violations of international law, in violating the Torture Victim Protection Act, and in committing common law torts.

Let me start by saying that by I believe the UN’s regime for Palestinian refugees and their descendants, which is different than the regime for any other refugees in the world and which is designed to ensure that Palestinian refugees and their descendants are never resettled anywhere, including in the part of Mandatory Palestine that became Jordan, and thus to ensure that the conflict between Israel and the Palestinians continues forever, is a major problem. It is an obstacle to peace and has been for decades. And I have no doubt that UNRWA has contributed to Palestinian intransigence in many ways over the years, including by its involvement in schools that have educated generations of Palestinians for perpetual resistance and hostility to the Jewish state and apparently through the sympathy of many staffers with Hamas and even the active participation of some staffers in Hamas’s crimes. Whether these plaintiffs can prove the aiding and abetting is another question. I would like for them to succeed, but I also would like for it to be untrue that UNRWA aided and abetted Hamas. We shall see.

Here at Letters Blogatory, we’ll follow the service and jurisdictional issues that the case is sure to raise. Here are some of my questions:

  • Is UNRWA treated as the United Nations itself for purposes of the Convention on the Privileges and Immunities of the United Nations? If so, then it probably has absolute immunity from suit. If not, is it within the designation of the United Nations as an international organization for purposes of the International Organizations Immunities Act (IOIA?) If so, then it seems likely to me that it is immune from jurisdiction unless there is an applicable exception to immunity under the IOIA, which refers to the exceptions to immunity in the Foreign Sovereign Immunities Act.
  • How will the plaintiffs serve process on UNRWA? This was an issue in Georges v. United Nations, the Haiti cholera case, and I think it will be an issue here, especially if the premises of UNRWA are inviolable as the premises of the UN itself are inviolable. Note also that under the Convention, the UN is not just immune from suit but from all legal process.
  • What about the officials who have been sued? Their official immunity will also depend on how UNRWA is characterized for purposes of the Convention on Privileges and Immunities of the UN and the IOIA. And they may be immune from legal process.

In short, while I would be happy to see UNRWA held to account, whether by these plaintiffs if they can prove their claims or by someone else, I think there will be very challenging threshold questions here that may make the suit’s prospects difficult.

Image credit: RomanDeckert (CC BY-SA)

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