Court Rejects Trump Administration’s Immunity Statement in UNRWA Case

“UN Secretariat Headquarters, New York” by UN_Photo is licensed under CC BY-NC-ND 2.0

A federal court has rejected the Trump administration statement of interest regarding the immunity of the United Nations Relief and Works Agency (UNRWA). In the Estate of Tamar Kedem Simon Tov et al. v. United Nations Relief and Works Agency (UNRWA) et al. (SDNY), foreign nationals allege that UNRWA and individual defendants knowingly aided and abetted torts committed by Hamas on October 7, 2023. Judge Analisa Torres recently dismissed the case, holding – contrary to the position of the Trump Administration – that UNRWA is a subsidiary organ of the United Nations (U.N.) and therefore entitled to immunity under the Convention on the Privileges and Immunities of the United Nations (CPIUN). The court also held that the individual defendants are protected by diplomatic immunity.

Background

On October 7, 2023, Hamas, a terrorist organization, launched an attack in Gaza, killing about 1,200 individuals and taking more than 240 people hostage. In response, Israel has conducted a brutal war in the Gaza Strip. The United Nations reports over 60,000 fatalities and 160,000 injuries among Palestinians. UNRWA was established by the United Nations General Assembly in 1949 with a mandate to “provide human development services” such as education to children, primary health care, and emergency assistance to Palestinian refugees.

The plaintiffs allege that UNRWA, through its relief efforts, “systematically and deliberately aided and abetted” Hamas’s terrorist activity, which resulted in extrajudicial killing and torture of citizens.  More specifically, they claim that UNRWA “knowingly facilitated and permitted the use of its facilities” by Hamas for “military and terrorist purposes, including the construction of Hamas command and control centers, attack tunnels, underground bunkers, weapons storage and deployment centers.”  The complaint also alleges that members of Hamas who were on UNRWA staff participated in the October 7 attack and in the torture of hostages. The plaintiffs brought suit under the Alien Tort Statute and some also sued under the Torture Victim Protection Act of 1991 (TVPA).

Immunity for UNRWA

The Biden administration filed a statement of interest in July 2024 asking the SDNY to treat the UNRWA as absolutely immune from suit pursuant to the CIPUN. In April 2025, the U.S. government reversed its position when the Trump administration filed a statement of interest arguing that the UNRWA is a “specialized agency” – not – a “subsidiary organ” of the U.N. – and therefore not entitled to immunity under the Convention.

Judge Torres began by assigning the burden of proof to the plaintiffs on the issue of immunity, reasoning that “UNRWA’s CPIUN-based immunity presents a first-order question of the Court’s subject matter jurisdiction.”  This reasoning is not convincing, even though other courts have made the same mistake. To be sure, the Foreign Sovereign Immunities Act (FSIA) conditions subject matter jurisdiction on a finding that immunity does not apply, but that statute is not at issue here.  In this case, the ATS itself provides for subject matter jurisdiction in the federal courts. The TVPA is not, by contrast a jurisdictional statute, but it does create a federal cause of action so that federal courts have subject matter jurisdiction under 28 U.S.C. § 1331. Under neither of these statutes does subject matter jurisdiction turn on immunity; immunity is instead an affirmative defense.

Turning to Charter of the United Nations (“Charter”) and the CPIUN, Articles 104 and 105 of the Charter extend immunity to representatives of the Members of the UN and UN officials “as are necessary for the fulfillment of [their] purposes.” CPIUN provides in article 2 that the UN “shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” The immunity conferred by CPIUN extends to “subsidiary organs” of the United Nations. The Second Circuit has held that the CPIUN is a “self-executing” treaty, meaning that it applies in courts in the United States without implementing legislation. Absent an express waiver, the CPIUN extends absolute immunity to the U.N. and its “subsidiaries.”

The plaintiffs and the Trump administration argued (as previously covered on TLB) that UNRWA is not a subsidiary organ of the United Nations but rather a “specialized agency” that is merely “affiliated” with the United Nations. Defendants countered by relying on the Biden administration’s statement of interest, letters submitted by the United Nations, and various U.N. documents to support UNRWA’s status as a subsidiary organ. In particular, the court noted that the General Assembly previously designated UNRWA as a subsidiary organ in its resolutions and that a March 2025 U.N. organization chart includes UNRWA as a subsidiary.  As to the evidence proffered by the plaintiffs about UNRWA’s status, Judge Torres found that it was either largely irrelevant or tended instead to show the organization is in fact a subsidiary organ of the U.N.

With respect to the U.S. government’s conflicting submissions made under different administrations, the court pointed out that the plaintiffs had asked the court to disregard the first statement of interest – the one from the Biden administration – because it was purportedly inconsistent with the position the government had taken when CPIUS was ratified.  Defendants argued, of course, that the court should disregard the second statement – the one from the Trump administration. Thus, the court reasoned, “[b]oth parties correctly recognize that the Court is not obligated to afford controlling authority to the Government’s statement of interest, even if the Court ordinarily gives the Government’s reasonable interpretations significant weight.”  In the end, the court found that “the text of the CPIUN unambiguously grants immunity to UNRWA as a subsidiary organ of the U.N.” and gave little weight to either statement by the government.

Plaintiffs also argued that immunity was not applicable because the complaint alleged violations of jus cogens norms. The Court refused to read in a jus cogens waiver of immunity, in part because the CPIUN does not provide any kind implied waiver exception to the U.N.’s absolute immunity. The court did not reach the question of immunity under the International Organizations Immunities Act (IOIA) because it found UNRWA immune under CPIUN.

Immunity for Individual Defendants 

The individual defendants argued that they were immune from suit under the CPIUN and IOIA because they are current and former U.N. officials sued for alleged acts committed in their official capacities.  Two defendants, Philippe Lazzarini and Filippo Grandi, were entitled to diplomatic immunity under the Vienna Convention on Diplomatic Relations (VCDR) based on their rank as U.N. Under-Secretary-Generals. The CPIUN provides immunity to U.N. officials whose actions were “performed in exercise of their official functions.” Because Lazzarini and Grandi both held their ranks during the time periods alleged in the complaint, the Court held that they are entitled to diplomatic immunity under the CPIUN. The court found the remaining individual defendants immune under the CPIUN and VCDR because the acts were undertaken in their official roles, no official waivers of immunity were made, and the conduct in question was not “commercial.”  Finally, plaintiffs argued for the application of a jus cogens exception, but the court declined to create one, noting that “[n]o United States court has recognized a jus cogens exception to diplomatic immunity from its civil jurisdiction.”

Conclusion

Despite the political valence of this case, it is not a difficult one.  The court correctly held that all defendants were immune from suit and thus dismissed the case.  Should the plaintiffs pursue an appeal, the Second Circuit should have little difficulty affirming.