On UNRWA’s Immunity

[This post originally appeared at TWAILR and is reprinted here with the author’s permission.]

The U.S. government’s attack on the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and indeed on the UN itself, has taken on new form. After instituting an extended freeze on U.S. funding to the agency a few months earlier, the Trump administration submitted a statement in an on-going civil suit in the U.S. District Court for the Southern District of New York (SDNY) on April 24, 2025, arguing that UNRWA is not entitled to the protections of the Convention on the Privileges and Immunities of the United Nations (“Convention on Immunities” or “Convention”). In that litigation, various non-U.S. citizen plaintiffs have sued UNRWA for allegedly “aiding and abetting” Hamas’s attacks in Israel on October 7, 2023. In its April 24 statement, the U.S. government asserted, for the first time, that UNRWA was not immune from suit under the Convention. That statement directly contradicted a letter filed by the Biden administration in the same suit in July 2024.

While the Biden administration was also no friend to UNRWA – instituting its own temporary freeze on funding to the agency that was subsequently extended by Congress – its submission in the SDNY case reflected what the law demands: that UNRWA be treated as absolutely immune from suit under the Convention on Immunities. The Trump administration’s submission—which relies and builds upon arguments raised by the SDNY plaintiffs that UNRWA is not entitled to the Convention’s immunity scheme—is a radical distortion of this well-established legal rule. In making its argument, the Trump administration also falsifies and distorts UN practice, which it is plainly aware of. While its arguments are absurd on their face, the letter represents another salvo in the Trump administration’s efforts to discredit the UN and dismantle UNRWA—objectives which it shares with the Israeli government.

The Trump Administration’s Position

In its submission to the court, the Trump administration raises two arguments as to why UNRWA is not covered by the Convention on Immunities. First, it argues that the UN General Assembly lacked the authority to create UNRWA in the first place. Second, it argues that, even if the General Assembly had authority to create UNRWA, UNRWA is more like a “specialized agency” than a “subsidiary organ” of the UN, and therefore not entitled to the Convention’s protections. While U.S. courts generally accord “great weight” to the Executive’s interpretation of a treaty, those interpretations are not dispositive or binding on courts, which have the final authority for interpreting and applying treaties under U.S. law. The Executive’s views are particularly unlikely to receive judicial deference where it has not “unfailingly adhered” to that view in the past, where that view is unreasonable, or where the Executive’s interpretation is not shared by other key parties to the treaty—all of which are evidenced here, as demonstrated below. Medellin v. Texas, 552 U.S. 491, 513 (2008); El Al Israel Airlines Ltd. V. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982).

As an initial matter, the Convention on Immunities strongly suggests that the most appropriate venue for resolving the government’s challenge to UNRWA’s immunity is not the U.S. judicial system, but rather the International Court of Justice (ICJ). According to Article VIII of the Convention, any dispute over the interpretation or application of the treaty, as between the UN and a Member States, shall be submitted to the ICJ and the resulting opinion “shall be accepted as decisive by the parties.” Since the United States has not otherwise entered a reservation to Article VIII and the UN has already expressed its view, earlier in this proceeding, that UNRWA is entitled to the Convention’s protections, the United States should have brought its disputed interpretation of the treaty to the ICJ (assuming, that is, that the UN does not otherwise agree to another mode of settlement, which is an exception to Article VIII). There are good reasons for this rule. A conflict between the UN and one of its Member States regarding the interpretation or application of the Convention can have far-reaching consequences for the UN system, impacting the ability of the UN and its subsidiary organs to operate in countries around the world, as discussed below.

In some respects, the issue of UNRWA’s entitlement to immunity, as a subsidiary organ of the UN, may be addressed by an advisory opinion the ICJ is likely to issue in another matter in the next few months (more on that later). In that regard, the SDNY court would be wise to delay ruling on the issue of UNRWA’s immunity until that advisory opinion is issued. That being said, the SDNY court may be unlikely to hold off on making its own determination and, even if it did, would ultimately resolve the dispute about UNRWA’s immunities on its own authority. As reflected in U.S. Supreme Court jurisprudence, the authority of U.S. courts to interpret and apply treaties is so ironclad that it cannot be displaced even by ICJ decisions that are binding on the United States as a matter of international law (advisory opinions are not). Medellin v. Texas, 552 U.S. 491, 518; Sanchez-Llamas v. Oregon, 548 U.S. 331, 333-34 (2006).

Applicable Law

With that in mind, a preliminary issue in resolving the dispute about UNRWA’s immunities revolves around the applicable law. Generally speaking, self-executing treaties signed and ratified by the United States, as well as rules of customary international law, are considered part of the “supreme law of the land,” binding on all courts in the United States. Exceptions to this rule exist, for example, where a later-in-time federal statute directly conflicts with an existing treaty or customary rule or where the existing treaty or customary rule is inconsistent with the U.S. Constitution. Restatement (Third) of Foreign Relations § 115 (1987). In those cases, international law will not be given effect in U.S. courts. In the SDNY case, there is neither inconsistency with the Constitution nor a later-in-time federal statute that directly conflicts with the key international treaty that applies to the dispute, namely, the Convention on Immunities. That treaty is also considered to be self-executing by both U.S. courts and the Executive Branch

While the Convention on Immunities provides the main governing law, how the SDNY court should interpret that treaty is plainly relevant as well. That issue turns on international law rules embodied in U.S. jurisprudence. The key multilateral instrument on treaty interpretation is the Vienna Convention on the Law of Treaties (VCLT). While the VCLT does not, by its terms, apply to treaties between states and international organizations (like the Convention on Immunities), those aspects of the VCLT that are considered customary international law apply to such agreements. In particular, the VCLT provisions relating to treaty interpretation—Articles 31 and 32—are considered customary rules applicable to interpreting the Convention on Immunities. While the United States has not ratified the VCLT and while the Supreme Court rarely invokes the agreement, the Court’s approach to treaty interpretation generally aligns with the VCLT’s provisions, as well as with the U.S. government’s own position that Articles 31 and 32 qualify as customary international law. Restatement (Fourth) of Foreign Relations, § 306, cmt. a (2018). As the Supreme Court has observed, U.S. courts must interpret international agreements “in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose,” an approach that aligns with VCLT Article 31. Sanchez-Llamas v. Oregon, 548 U.S. 331, 346 (2006). Because “a treaty ratified by the United States is not only the law of this land. . . but also an agreement among sovereign powers,” the Court has also “traditionally considered as aids to its interpretation the negotiating and drafting history. . and the postratification understanding of the contracting parties,” which is consistent with both Articles 31 and 32. El Al Israel Airlines Ltd. V. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999).

As reflected in its preamble, the purpose of the Convention on Immunities is to implement Articles 104 and 105 of the UN Charter, which together require that Member States accord the UN the legal capacity, privileges, and immunities necessary to fulfill its purpose. Under Article II of the Convention, “[t]he United Nations its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. . . .”

Did the General Assembly Have the Authority to Create UNRWA?

This brings us to the first argument raised by the Trump administration’s submission, namely, that Article II of the Convention on Immunities does not apply to UNRWA because the General Assembly lacked authority to create UNRWA pursuant to Article 22 of the UN Charter. Trump Administration Letter 3-5 (April 24, 2025). In order to determine whether Article II applies, “relevant rules of international law” in this case, the UN Charter, need to be consulted, as permitted by Article 31 of the VCLT.

The UN Charter is the constitutive multilateral agreement that created the UN and that governs its powers and authorities. The Charter includes various articles detailing the powers of the General Assembly. In its submission, the Trump administration takes a strict textualist approach to the Charter, arguing that the General Assembly’s powers are limited to those listed in the Charter itself. Trump Administration Letter 4 (April 24, 2025). What the Trump administration does not mention, however, is that its approach has been explicitly rejected in a series of advisory opinions from the ICJ.

In the first of these opinions—Reparation for Injuries Suffered in the Service of the United Nations (1949)—the ICJ concluded that the UN, as a body, has implicit powers beyond those explicitly listed in the Charter. As the Court held, “[u]nder international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” Those duties “cover[] a wide field, namely, the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character.” In a subsequent advisory opinion, the Court applied this approach to the General Assembly, refused to limit the Assembly’s powers to the Charter’s text, and concluded, instead, that the Assembly also has the implied powers necessary to fulfill its express authorities.

The ICJ’s advisory opinion in Certain Expenses of the United Nations (1962), which is part of this line of rulings, is particularly relevant to the General Assembly’s power to create UNRWA. In that case, the ICJ held that the General Assembly’s powers are not limited to “discussing, considering, studying and recommending,” but rather that it is also responsible for maintaining “international peace and security.” While the ICJ noted that the Security Council has “primary” responsibility for upholding peace and security, it noted that the General Assembly is authorized, pursuant to Article 14 of the Charter, to “‘recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations. . . .’” According to the Court, this provision, together with the Assembly’s express power to make “decisions” under Article 18, empowers the General Assembly to take actions that have “dispositive force and effect.” In particular, the ICJ explicitly sanctioned and supported the General Assembly’s, by then, already well-established practice of creating “subsidiary organs . . . under the authority of Article 22 of the Charter” to discharge its responsibility to maintain international peace and security. As commentators concluded long ago, this holding means that the Assembly’s power to create subsidiary organs, like UNRWA, is “established, and will be construed generously in the light of the Charter.”

While these ICJ advisory opinions do not bind the United States, they are highly persuasive authorities that should dissuade a U.S. court from adopting the government’s strict textualist approach to determining the General Assembly’s powers. In general, U.S. courts “seek to avoid giving to an international agreement a meaning in domestic law different from its international meaning.” Restatement (Fourth) of Foreign Relations, § 325, cmt 4 (1987). In line with this practice, the Supreme Court has held that “respectful consideration” should be given “to the interpretation of an international treaty by an international court with jurisdiction to interpret such. . . .” Breard v. Greene, 523 U.S. 371, 1354 (1998). That “respectful consideration” “reflects the understanding that uniformity is an important goal of treaty interpretation.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 383 (2006) (Breyer, J., dissenting). In particular, “[t]he ICJ’s position as an international court specifically charged with the duty to interpret numerous international treaties. . . provides a natural point of reference for national courts seeking that uniformity.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 383 (2006) (Breyer, J., dissenting). In accordance with these guiding principles, the Supreme Court and lower courts have regularly “looked to the ICJ for guidance in interpretating treaties and in other matters of international law.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 384 (2006) (Breyer, J., dissenting) (collecting cases).

These reasons provide strong grounds for the SDNY court to follow the ICJ’s repeated conclusion that the General Assembly has both the explicit powers reflected in the UN Charter, as well as implied powers necessary to effectuate its duties. It also provides persuasive authority for the court to conclude that the General Assembly had the authority to create UNRWA. As reflected in the General Assembly resolution that created UNRWA in 1949, the agency was established, in part, “to further conditions of peace and stability.” As suggested by the Certain Expenses of the United Nations opinion, this accords with the General Assembly’s express authority to create subsidiary organs under Article 22 of the Charter, as well as its implied authority to maintain international peace and security.

The conclusion that the General Assembly had the authority to create UNRWA is further bolstered by the fact that, until now, there has been little, if any, public opposition to that authority from Member States within the UN’s principal organs. Notably, while Member States have brought challenges to the General Assembly’s authority to create various subsidiary organs, as reflected in the Repertory of Practice of United Nations Organs—a UN legal publication analyzing trends in the interpretation and application of the Charter within the UN system—none of the repertoires publicly available on the UN’s website show any challenge to UNRWA’s creation brought by Member States within the UN principal organs.

Is UNRWA a Subsidiary Organ of the UN?

This brings us to the Trump administration’s second argument that, even if the General Assembly had the power to create UNRWA, UNRWA is not protected by the Convention on Immunities because it is more like a “specialized agency” than like a “subsidiary organ” under the UN Charter. Trump Administration Letter 5-9 (April 24, 2025).

At the outset, it is worth noting that the Trump administration expressly refuses to concede that subsidiary organs are entitled to immunity under the Convention’s scheme. Trump Administration Letter 3 n.2 (April 24, 2025).  That position directly contradicts previous statements from the Executive Branch, including statements repeatedly filed by the first Trump administration, which consistently asserted the Convention’s absolute immunity scheme in favor of entities that were subsidiary organs of the United Nations. It also contradicts well-settled U.S. case law, as well as expert analysis holding that subsidiary organs of the UN are entitled to absolute immunity under the Convention. Given the difficulties in overcoming this countervailing evidence—especially in light of the uphill battle it already faces—the Trump administration does not pursue the point, though it could revisit the issue in future. For now, the administration argues that, even if subsidiary organs do qualify for the Convention’s protections, UNWRA is not such an organ.

Though the Charter does not define what constitutes a “subsidiary organ,” subsequent UN practice does. Under Article 31 of the VCLT, as well as Supreme Court precedent, such subsequent practice is relevant to interpreting the meaning of a treaty term. See Medellin v. Texas, 552 U.S. 491, 516-17 (2008) (interpreting meaning of treaty by examining postratification understanding of its signatory nations, as reflected in state practice). Despite the Trump administration’s attempts to make UNRWA’s work seem unusual or out-of-line with that of other subsidiary organs, UN practice makes clear that UNRWA is indisputably a subsidiary organ of the General Assembly under Article 22.

Pursuant to the UN’s internal structures and procedures, UNRWA qualifies as an “operational agency,” which is one of several different types of subsidiary organs created by the General Assembly. While different kinds of subsidiary organs have different functions and authorities, operational agencies are specifically tasked “with administering relief, rehabilitation and assistance programmes financed by voluntary contributions outside the regular budget of the United Nations.” In carrying out their mandates, operational agencies have the “authority to enter into contracts, to sue, to acquire, hold and transfer property, and to take any other legal action required in the performance of their functions.” With respect to their organization and structure, each of the General Assembly’s operational agencies “has a secretariat consisting of an executive head and his staff, and a governmental committee or board empowered to give directives or advice to the executive head in the performance of the agency’s duties.”

The very aspects of UNRWA’s operation that the Trump administration presents as proof the agency is not a subsidiary organ are, in fact, aligned with these core attributes of operational agencies. Trump Administration Letter 6 (April 24, 2025). First, while the Trump administration argues that UNRWA’s economic, social, and infrastructural activities are inconsistent with the work of subsidiary organs, such work is consistent with an operational agency’s responsibility to administer relief, rehabilitation, and assistance programs, as reflected in UNRWA’s General Assembly-approved mandate. Second, the Trump administration argues that UNRWA is not a subsidiary organ because it has the “capacity and independence to enter into innumerable commercial contracts,” but this too is plainly consistent with the powers of operational agencies. Third, while the administration points to the fact that UNRWA receives most of its funds through voluntary contributions rather than the UN budget, this is plainly consistent with how operational agencies function. Finally, the Trump administration’s claim that UNRWA is not a subsidiary organ because it has its own staff rules and regulations is similarly inapposite. Not only does UNRWA’s promulgation of staff rules accord with the GeneralAssembly resolution creating agency. As the Trump administration’s letter itself notes, UNRWA’s “staff regulations and rules, which are modeled on the UN Secretariat’s own staff regulations and rules, are approved by the Secretary General of the UN,” a fact that underscores the UN’s continuing control over UNRWA.

This level of UN control is a key characteristic of subsidiary organs. Subsidiary organs of the UN “are created, their membership, structure and terms of reference are determined and may be modified, and they may be discontinued, by or under the authority of a principal organ.” Consistent with this, UNRWA’s Commissioner-General is appointed by the UN Secretary General and reports directly and regularly to the General Assembly. The General Assembly is also responsible for renewing UNRWA’s mandate, which it has periodically done. Biden Administration Reply Letter 3 (Oct. 18, 2024). Among other things, this renewal power means the General Assembly has the authority to dissolve UNRWA, something that principal organs are generally able to do to their subsidiary organs.

This level of control does not extend to specialized agencies within the UN system. Even when subsidiary organs, like operational agencies, engage in autonomous activities that require certain legal capacities, they do not possess legal personality of their own and remain “integral parts of the UN.” While they “routinely perform legal acts and incur legal obligations. . . .this is all performed in the right of the UN as a whole.” By contrast, specialized agencies have a “separate legal personality from the UN” and “owe their existence to, and are regulated by, treaty,” not by the UN itself. While subsidiary organs, including operational agencies, are typically created by resolutions passed by the UN’s principal organs, specialized agencies are brought into relation with the United Nations through agreements between the UN and the specialized agency itself.

That UNRWA, in particular, is considered a subsidiary organ of the General Assembly, entitled to the protections of the Convention on Immunities, is also well-established in UN practice. While the General Assembly Resolution that created UNRWA did not mention Charter Article 22, in its very first Repertory of Practice of United Nations Organs, the UN listed UNRWA as a subsidiary organ and operational agency created pursuant to Article 22. UNRWA’s classification as a subsidiary organ has been consistently repeated in UN practice, as reflected in subsequent repertoires and other UN documents, including agreements between UNRWA and other entities. Indeed, even those commentators who have criticized UNRWA have acknowledged its status as a subsidiary organ of the General Assembly. Notably, Israel—which, as described below, has waged a long-standing hostile campaign against UNRWA—acknowledged UNRWA’s status as a subsidiary organ of the UN as recently as February of this year. UNRWA’s entitlement to the Conventions on Immunities’ protections has also been reiterated by various General Assembly resolutions that to different extents describe UNRWA as enjoying the Convention’s benefits, in some cases explicitly linking that enjoyment to UNRWA’s status as a subsidiary organ.

The Trump administration is undoubtedly aware of the many factual reasons why UNRWA qualifies as a subsidiary organ rather than a specialized agency, as this evidence is reflected both in the Biden administration’s briefing on the issue (which lawyers who worked on the Trump letter were also involved in) and because the Trump administration’s letter relies on scholarly work reiterating many of the above points about UNRWA’s status. Instead of engaging with these realities in good faith, however, the Trump administration operates in the land of make believe. In its letter to the SDNY court, it advocates for a newly developed and radical theory for determining subsidiary organ status that has no basis in UN practice, the text of the Convention on Immunities or its drafting history, or any other applicable rules of international or domestic law.

Instead, the administration’s entire approach relies on its claim that the Convention on Immunities should be informed by jurisprudence on an entirely different area of law: the law on the immunities of foreign states. This argument, in turn, is based on a single line from a 1970 report issued by the U.S. Senate Committee on Foreign Relations, supporting congressional ratification of the Convention on Immunities. As the Trump administration describes it, the Senate committee recommended ratification of the Convention based on the belief that the UN’s immunities “would be ‘substantially the same’ as that granted to foreign sovereigns.” Trump Administration Letter 5 (citing S. Exec. Rep. No. 91-17 at 2 (March 17, 1970)) (April 24, 2025). This view is an anachronistic and inapposite reference for several reasons.

First, the Senate statement suggests that the Convention’s immunity rules are “substantially the same” as the rules on foreign sovereign immunity. That statement does not, however, mean that UN immunity is identical either to foreign sovereign immunity doctrine as it existed in 1970 or after. Even if it did, U.S. courts that have considered the scope of the Convention on Immunities since then have uniformly treated the Convention as creating absolute immunity for the UN. The Trump administration does not challenge that view in its letter. This is notable since one of the central aspects of foreign sovereign immunity doctrine, as reflected in the Foreign Sovereign Immunities Act (1976), is that foreign sovereigns are only entitled to restrictive—rather than absolute—immunity from civil suit in U.S. courts. If this central pillar of foreign sovereign immunity does not apply to the Convention on Immunities, it is hard to see how the domestic jurisprudence the administration relies on in its letter—which concerns more technical aspects of U.S. foreign sovereign immunity law—should inform how courts interpret the Convention’s immunity scheme.

Second, applying the principles of foreign sovereign immunity to UN immunity misapprehends the very different purposes of each immunity regime. The immunity foreign sovereigns enjoy before the courts of other states is based on the notion that all states are equals and do not have authority over one another. By contrast, the immunity accorded to the UN is based on the understanding that “an organization established by a group of states to carry out common functions should not be subject to unilateral interference by one of these states outside the mechanism of participation provided for in the structure of the organization.” As a previous U.S. administration noted in supporting the immunity of the UN and a subsidiary organ, without absolute immunity, the United Nations “could be subject to over 190 disparate legal systems.” This difference—between the purpose of foreign sovereign immunity and the purpose of UN immunity—is particularly salient since the Convention on Immunities contains no language that makes UN immunities co-extensive, in any way, with the immunities of foreign states.

The Consequences of Concluding that UNRWA Is Not Immune

The Trump administration’s submission to the SDNY court is a stark reminder of another reason why it is vital the UN, including its subsidiary organs, retain absolute immunity in the territory of Member States: organizational independence. As commentators have noted, “the independence of the UN is important, because it is established as a collective organization by states to carry out functions in the common interest.” That independence is “primarily. . .guarantee[d]” by the immunity principles protecting the UN as a whole.

This brings us to the multiple serious policy concerns that may arise if the SDNY court adopts the Trump administration’s position. For a U.S. court to depart from settled international law and UN practice and embrace the Trump administration’s views would, at the very least, amount to a serious interference in UN operations by a Member State. It would effectively replace the UN’s own internal procedures and policies with those policies preferred by the United States, giving other Member States a justification to do the same through their own domestic courts and legislatures. Should the SDNY court conclude that UNRWA does not qualify as a subsidiary organ, it would threaten the status of other operational agencies, like the UNHCR, which leads “international action to protect refugees, forcibly displaced communities and stateless people,” and UNICEF, which “advocate[s] for the protection of children’s rights, to help meet their basic needs and to expand their opportunities to reach their full potential.” Should the court conclude that the General Assembly’s powers are limited to those specifically articulated in the Charter that would upend decades of UN work that has relied on ICJ interpretations of the organization’s powers. It would put into question scores of UN bodies and agencies that provide critical humanitarian aid beyond just subsidiary organs. Accepting the Trump administration’s views would, in other words, potentially spell the end of the UN system as it has operated for nearly 80 years.

That is likely exactly what the Trump administration is hoping for. Indeed, its position in the SDNY case is clearly based not on law—which contradicts everything the administration is arguing for—but rather on a deep-seated political hostility to UNRWA and the United Nations, itself. That hostility is shared by and intended, in part, to support the United States’s close ally, Israel. The Israeli government has spent years seeking to dismantle and discredit UNRWA, believing it can eliminate the Palestinian refugee issue by doing so. Since October 7, Israel’s attacks on UNRWA have assumed an additional objective, as recently articulated by Professor Ardi Imseis: the furthering of Israel’s genocide of the Palestinian people. In line with this new and shocking goal, Israel’s assaults on UNRWA have become particularly egregious and aggressive. Since October 7, Israel has killed hundreds of UNRWA staff in the Gaza Strip, destroyed or damaged hundreds of UNRWA facilities in Gaza, attacked and commandeered UNRWA properties in the West Bank, pushed UNRWA’s funders to defund the agency, and passed legislation in the Israeli Knesset declaring UNRWA a terrorist organization and otherwise impeding its ability to work inside the Occupied Palestinian Territory (“OPT”).

In December 2024, the General Assembly responded to these severe and unprecedented actions by seeking an advisory opinion from the ICJ on Israel’s obligations to facilitate the work of UN bodies operating in the OPT, particularly UNRWA, including the obligation to respect the privileges and immunities of those bodies. During hearings on that advisory opinion request, which began only three days after the Trump administration made its submission to the SDNY, the United Nations yet, again, reiterated UNRWA’s status as an integral subsidiary organization entitled to immunities under the Convention on Immunities.

In pursuing their unlawful, politically-motivated actions against UNRWA, the United States and Israel seek to circumvent the UN system and enforce their own political interests through brute force, domestic legislative action, and the complicity of their judicial systems. It is, however, worth recalling that the United States and Israel have not always sought to unravel UNRWA and strip it of its protections under international law. Indeed, the U.S. government’s decision to challenge the General Assembly’s creation of UNRWA, nearly 80 years after its establishment, flies in the face of the United States’s decades long support for the agency. For over sixty years, the United States was the largest bilateral donor to UNRWA. It was also the primary force behind UNRWA’s creation. For its part, until recently, Israel was party to a bilateral agreement with UNRWA in which it committed to fully co-operate with UNRWA in the West Bank and Gaza Strip, to “facilitate the tasks of UNRWA,” and, importantly, to “recognize that the Convention on the Privileges and Immunities of the United Nations. . . shall govern the relations between the [Israeli] Government and UNRWA in all that concerns UNRWA’s functions.”

Israel and the United States would likely argue that these commitments are no longer valid, since UNRWA is, according to them, involved in supporting “terrorism” by Palestinian groups. Those allegations, which remain unverified and unsubstantiated, cannot and do not undo UNRWA’s well-established status as a subsidiary organ of the UN entitled to absolute immunity under the Convention on Immunities. While UNRWA’s status remains unassailable, the status of the SDNY court would, by contrast, be transformed should it adopt the administration’s view. In such a case, the court would go from being part of the judicial branch of the U.S. government—obliged to fairly and objectively apply the law to the facts—to a member of the political branches, doing the administration’s bidding and little more.