UNRWA: Why Functional Immunity Should Be Removed.

It has been alleged that at least twelve UNRWA employees directly participated in the massacre of Israeli civilians on October 7th. Under the Convention on the Privileges and Immunities of the United Nations, function immunity of employees can be removed if acts performed by them were not done in their official capacity. Article V, Section 20 reads as follows: 

Section 20. Privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity.

In this case, the section states that the Secretary-General has the power and obligation to remove functional immunity from individual employees who in his or her opinion have performed acts beyond functions performed in their official capacity.

In the real world that means that the opinion of an individual decides whether functional immunity will be removed. An OPINION. We all know what the General Assembly and Security Council are like: they are serially biased against Israel and that's a political consideration which the Secretary-General has to deal with. In this matter, one can only conclude that the Secretary-General does not want to make waves that would upset a majority of member-states. Put another way, the Secretary-General declines to do his job.

Now, let us examine why the United States Justice Department has asked the court to side with the United Nations with regard to what they refer to as absolute immunity. Given the unambiguous text of The Convention, it is clear that member-states have no choice but to request dismissal of court action in their domestic courts if the UN has not previously waived functional immunity. In short, domestic justice organizations are boxed in in law. They have no other option than to seek dismissal of lawsuits instituted by nation-states, private organizations or individuals.

In this case, one would hope that the DOJ would have made it clear to the court that its request was solely based on a legal technicality and therefore had functional immunity been waived, it would have argued that the case at bar should go forward.

In effect, UNRWA employees continue to enjoy functional immunity from prosecution because the Secretary-General refuses to recognize the obvious. These acts that are alleged were without a doubt done in a non-official and private capacity and consequently, are sufficient grounds for the removal of functional immunity pertaining to these employees.