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.