Let Terror Victims Sue UNRWA

Congress gave international organizations immunity from civil liability. It’s time to establish an exception.

By Eugene Kontorovich,  WSJ Feb. 16, 2024 4:28 pm ET

Imagine the consequences if an American municipal government were found to have allowed a known terror group to build a major base under City Hall. What if employees of a local public library had provided terrorists with supplies or joined in a campaign of murder, torture and hostage-taking? At the very least, everyone involved would be accountable for large damages to the victims in civil suits. The United Nations Relief and Works Agency, or Unrwa, has done exactly these things in Gaza. Yet no one in Turtle Bay is worried about being hauled into court.

The U.N. and its subsidiaries, as well as an alphabet soup of international organizations, enjoy absolute immunity from civil lawsuits in the U.S.—even for intentional crimes committed under their authority. Congress conferred this immunity in 1945 by passing the International Organizations Immunities Act. The U.N. and similar organizations were supposed to act for the benefit of humanity, and immunity would give them independence and protect them from harassing lawsuits.

Immunity for international organizations is modeled on sovereign immunity, one of the bedrock principles of international law, which bars countries from allowing their courts to hear damages suits against other countries. Yet even with sovereign immunity, Congress established that if other states support or promote the murder or abuse of Americans, the victims or their families should be allowed to recover damages. In the Foreign Sovereign Immunities Act of 1979 (FSIA), Congress stripped states of their immunity for murder, torture and hostage-taking of American citizens, provided that the president designates the country as a “state sponsor of terrorism.” Countries like Iran and North Korea are currently on the list.

No similar exception was made to the immunity of international organizations, because no one thought such agencies would be involved in anything worse than traffic accidents. Congress certainly didn’t contemplate that U.N. agencies would become alter egos for brutal terror groups. The result has been an absurdity: International organizations are created by countries but have far broader immunity than countries do.

In JAM v. International Finance Corp. (2019), the Supreme Court ruled that FSIA’s exceptions to immunity for states can also be read into the 1945 law because Congress didn’t intend for international organizations to enjoy a broader immunity than countries do. But JAM doesn’t help with international-organization-supported terrorism, because it is inconceivable—and perhaps incoherent—for the U.S. to designate an international organization as a “state” sponsor. This is especially true for U.N. agencies, since the U.S. is a member of the U.N.

The nature of such entities’ complicity with terror groups is different from that of states. International organizations typically don’t sponsor such groups, but they may conspire with or assist terrorists, or simply fail to prevent themselves from being infiltrated and directed by them. The right way to reconcile the principles of FSIA with the International Organizations Immunities Act is to amend the latter to allow suits by Americans against organizations that provide material support to designated terror groups.

A bill written by Sen. Ted Cruz currently being circulated in the Senate would do this. The draft bill would give victims—such as the families of the more than 30 U.S. citizens killed by Hamas on Oct. 7—an opportunity to receive the compensation they deserve. But it would also give U.N. leaders—who seem completely to have buried their heads in the sand about the conduct of their agencies in Gaza—an incentive to provide meaningful oversight and control.

Such a reform would allow the White House to maintain executive control by limiting liability to those organizations that provide support to groups on the official terrorist list. Some will howl that groups like Unrwa also do important humanitarian work, but it isn’t too much to ask of U.N. agencies that they internalize the costs of forming partnerships with designated terror groups and compensate victims.

Some in Congress are now calling to defund Unrwa. That is certainly appropriate, but if that happens, it shouldn’t be the end of the story, especially since it does nothing for American victims. Moreover, defunding by the U.S. isn’t necessarily permanent and other countries can fill the gap. Damage awards, by contrast, present more than a liquidity problem. And if other international organizations provided material support for terrorism, even short of direct participation in attacks, there is no reason they shouldn’t also be forced to pay damages to victims.

Mr. Kontorovich is a professor at George Mason University Scalia Law School and a scholar at the Jerusalem-based Kohelet Policy Forum.