By Haggai Carmon

A United Nations employee was involved in a car accident that caused property damage. Does she enjoy the same immunity the UN enjoys, or any other immunity? A Jerusalem Magistrate Court’s answer was in the negative.

In response to a tort lawsuit for damages against the UN employee, the plaintiff alleged that his damage was caused by her reckless driving. The UN employee moved to dismiss the Complaint in limine arguing immunity pursuant to Article IV, Section 18 of The Convention on the Privileges and Immunities of the United Nations to which Israel is a signatory. Israel also adopted the Convention into its internal law by Order in 1949. Although the UN immunity under the UN Charter’s articles 104 and 105 is functional, the Convention granted the UN absolute immunity.

The UN Charter provides:

The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.

Article 105

1.     The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

2.     Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

3.     The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

The UN Convention provides:

          Section 18. Officials of the United Nations shall:

(a)  be immune from legal process in respect of words spoken

       or written and all acts performed by them in their official capacity

Therefore, the defendant claimed that since the UN enjoys absolute immunity in Israel, she too, as an employee of the United Nations is entitled to the same immunity protection. The Plaintiff argued that the immunity granted under the Convention protects UN employees regarding “all acts performed by them in their official capacity.” Since she never alleged that the accident occurred when she was performing any official duty, her claimed immunity cannot be allowed.

The court agreed and refused to dismiss the Complaint.

The court based its decision on a recent decision of the Jerusalem District Court that distinguishes between the absolute immunity of the UN and the relative and restrictive immunity its employees enjoy. The Jerusalem District Court cited

Westchester County v. Ranollo (US, City Court of New Rochelle, 187 Misc. 777, 67 N.Y S2d 31) where a chauffer of the UN Secretary General was convicted for speeding. The New York Court ruled that as a matter of law the employee was not immune. The Jerusalem court also cited Rendall-Speranza v. Nassim and the International Finance Corp. in the United States District Court for the District of Columbia.

The Jerusalem Court reviewed the Order that adopted the Convention into Israel’s law. In its analysis, the court concluded that the immunity granted to UN employees, under Article 3 of the Order meant to enable them to perform their activities in “furthering UN goals.” The defendant did not do that when she drove the car at the time of the accident. The Jerusalem Court further ruled that as a matter of public policy, UN employees should not be immune while conducting private acts, otherwise arbitrary conduct would be encouraged and protected.

The Motion to Dismiss was denied, and the Complaint against the UN employee will proceed on its merits.

By Haggai Carmon

Does UNRWA, (United Nations Relief and Works Agency for Palestinian Refugees in the Near East,) enjoy absolute immunity from legal proceeding in Israel? A Jerusalem Magistrate’s Court answered in the affirmative.

A medical malpractice lawsuit was brought against a physician, a hospital, a health maintenance organization (HMO) and UNRWA. The plaintiff argued that the doctor, the hospital, the HMO and UNRWA failed to diagnose a birth defect, and as a result, the plaintiff did not seek the early treatment that could have – according to the complaint – mitigated or even eliminated the damage caused by the defect. UNRWA failed to appear and Israel’s Legal Advisor to the Government (equivalent in some countries to the position of the Attorney General) appeared in its stead, asking for a dismissal of the complaint against UNRWA due to the organization’s unconditional and absolute immunity in Israel. UNRWA is a United Nations agency established pursuant to a 1949 decision of the General Assembly. Its mandate is extended every three years. The HMO – through its counsel Eitan Haezrachi – argued that UNRWA is a “separate entity” from the United Nations. The court found that and his other arguments against UNRWA’s immunity to be without merit. Israel entered into an agreement with UNRWA: “Exchange of Letters between Israel and UNRWA Constituting an Agreement regarding the United Nations Relief and Welfare Agency to Palestinian Refugees in the Near East.” Under the agreement, Israel is to assist UNRWA in carrying out its activities. The agreement also provides that “Israel recognizes that the Convention Concerning immunities and Privileges of the United Nations dated February 13, 1946 – to which Israel is a signatory – shall regulate the relationship between the Israeli government and UNRWA regarding UNRWA’s duties.”

When Israel became a signatory to the Convention, and the Convention was adopted into Israeli law by Order (a statute) and Decree of the Israeli Foreign Minister, the U.N.’s immunity in Israel was created. The Order set the legal framework for granting immunity to the U.N., and the subsequently issued Decree formed the conclusion that UNRWA enjoys absolute and unconditional immunity from civil lawsuits in Israel.

The HMO’s counsel argued that U.N. immunity should be similar to the immunity granted to sovereign nations, which excludes torts. The court rejected this argument based on the clear language of the Order as well as acceptable doctrines of international law that regard recognized international organizations’ immunity as functional and therefore absolute. Sovereign states’ sovereignty, on the other hand is relative and restrictive.

The complaint against UNRWA was dismissed with costs.

Observing the litigation from an international law perspective brings us to the unavoidable conclusion that the plaintiff’s naming of UNRWA in the complaint and then the attempt of the HMO and the other parties to claim that UNRWA was not immune, was an exercise in futility. The HMO’s counsel, for example, tried to rely on a decision of a Jerusalem court that limited the U.N.’s immunity, although that decision had subsequently been revoked. There were other available legal avenues to share the burden of the litigation if the plaintiff were to prevail, but alas, they were not taken.

By Haggai Carmon

The Jerusalem Magistrate’s Court dismissed a civil complaint against the European Commission filed by two plaintiffs following a public tender for supply of trucks, tractors and waste disposal equipment for an area in the Palestinian Authority.

The Court determined that under Israeli law the European Commission is immune to the lawsuit because it is “an international organization” recognized by Israel under a 1992 Decree of the Israeli Foreign Minister. The plaintiffs argued that given the subject matter of the lawsuit – a commercial transaction – the EC could not  be immune to it in Israel. The court disagreed: “In this matter, publishing a public tender seeking bids to perform work does indeed contain elements of a contract, which is private law. However, we should remember that the petitioner [the European Commission] is not a sovereign state but an international organization with certain goals. Publishing the tender and the performance of the works constitute expression and materialization of these goals. Therefore, the acts of the petitioner must be regarded as being within the public-governmental authority of the petitioner, and therefore it is entitled to immunity.”

If the European Commission were a sovereign state, it is likely that the lawsuit would proceed to a hearing on its merit, because sovereign immunity in Israel excludes commercial transactions. However, Israeli law follows customary international law, which grants almost absolute immunity to “recognized organizations” such as the Red Cross, the European Commission or the United Nations, even in commercial matters, and therefore the complaint against the European Commission was dismissed.

The European Commission raised additional arguments concerning lack of subject matter jurisdiction of the Israeli court due to choice of law, forum non conveniens, non-justiciability and other international law based arguments. However, the Court indicated that since it decided to dismiss the complaint on grounds of immunity, it did not find it necessary to rule on the other arguments. The complaint against the European Commission was dismissed with costs.