Thread by @MarkGoldfeder

Dear @TheJusticeDept:
Your letter re: the scope of @UNRWA's immunity makes a lot of assumptions. Some are big, some are small, but most are unfortunately wrong. I hope that you correct them because they can have very dangerous consequences. Here, let me explain:

https://twitter.com/EFischberger/status/1837796376597369312

1) Even absolute immunity is not actually absolute.
In international law, a peremptory norm (jus cogens) is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.

@TheJusticeDept @UNRWA As explained in Art. 53 of the Vienna Convention on the Law of Treaties, "a treaty is void if it conflicts with a peremptory norm of general international law at the time of its conclusion. "
legal.un.org/ilc/texts/inst…

Among the examples of jus cogens principles given by the United Nations are the prohibitions against genocide, and the prohibition of crimes against humanity. (see p. 147)
legal.un.org/ilc/reports/20…

As you know, UNRWA derives its immunity from the U.N. Charter, art. 105, § 1, as further defined in The Convention on the Privileges and Immunities of the United Nations (the “General Convention”), art. II, § 2.

Neither of those treaties can override a jus cogens principle.

What then, has UNRWA been accused of in this instance?
No, not the vague allegations you reference (a bit lazily) in your letter. If I recall it was something more specific...

Ah, yes, there it is:
COUNT I: Aiding and Abetting Torts Committed by Hamas in Violation of the Law of Nations, Including Genocide and Crimes Against Humanity, and Treaties of the United States).

I knew that sounded familiar.

2) There are also multiple technical arguments to be made here that UNRWA is not actually immune (or does not have to be, if say a government was willing to challenge its claim):

The treaties above are not self-executing; it is only an affiliated organization and was never itself designated under the International Organizations Immunities Act of 1945;

even under the IOIA, after Jam v. Int'l Fin. Corp., 442 F. Supp. 3d 162, (D.D.C. 2020) and Rodriguez v. Pan American Health Org., 502 F. Supp. 3d 200 (D.D.C. 2020) there may be other exceptions, modeled after the exceptions under the Foreign Sovereign Immunities Act, etc. etc.

It saddens me that you chose to simply assume that UNRWA's positions are correct, instead of engaging on any of these points. The blindfold worn by Lady Justice is meant to signify impartiality, not deliberate failure to make reasonable inquiry.

3) Perhaps the most egregious assumption you accept is the idea that the claims made by the plaintiffs against all the individual defendants here relate to actions undertaken or omissions made by them in the performance of their official function.

To be clear, because it appears that you might not have read the whole complaint, it is chock full of allegations that these defendants aided and abetted Hamas, and that they did so consciously, voluntarily, and culpably.

Is it, pray tell, your contention that all of those actions were what UNRWA was supposed to be doing?

There are three more points worth making about this telling lack of leadership.

First, as others have pointed out, the UN and even UNRWA have specifically already said that they would waive immunity for any employees who were involved in acts of terror. Of course, that was back in Jan. when they did not think anyone had the receipts.

https://x.com/lkajomovitz/status/1838056911758848295

Second, the lack of appetite on behalf of the executive branch to go after supporters of terror is why private groups like @HeidemanDC are stepping up to challenge these assumptions.

@HeidemanDC It is also why Congress should pass @SenTedCruz's Limiting Immunity for Assisting Backers of Lethal Extremism (LIABLE) Act.

@HeidemanDC @SenTedCruz As @EVKontorovich explains, the Act would not only give victims an opportunity to receive the compensation they deserve, it would also give U.N. leaders an incentive to provide meaningful oversight and control.
wsj.com/articles/let-t…

@HeidemanDC @SenTedCruz @EVKontorovich And finally, for the record, this is why we sued their nonprofit, @unrwausa.
unwatch.org/wp-content/upl…

@HeidemanDC @SenTedCruz @EVKontorovich @unrwausa Because even if UNRWA somehow UNRWA maintains its ridiculous immunity, a U.S. "charity" operating a terrorist financing scheme on its behalf has no claim to any such protections.
@official_NJAC @holtzmanvogel @politicalelle @Ostrov_A

@HeidemanDC @SenTedCruz @EVKontorovich @unrwausa @official_NJAC @holtzmanvogel @politicalelle @Ostrov_A Bottom line, deep down we all really know that UNRWA is Hamas. How? Because they not only showed us, they told us.

@HeidemanDC @SenTedCruz @EVKontorovich @unrwausa @official_NJAC @holtzmanvogel @politicalelle @Ostrov_A Already back in 2004 then-UNRWA Commissioner-General Peter Hansen stated, “Oh, I am sure that there are Hamas members on the UNRWA payroll, and I don't see that as a crime.”

Here's the thing: It is a crime. And the DOJ could stop it.

@HeidemanDC @SenTedCruz @EVKontorovich @unrwausa @official_NJAC @holtzmanvogel @politicalelle @Ostrov_A Please, @TheJusticeDept, just do your job.