72 No. 78 JUSTICE Hamas’s presence inside UNRWA, and UNRWA’s willing and active participation, were systematic, sustained, and known. The pending litigation seeks to hold UNRWA accountable for that participation. The stakes are prospective as well as retrospective: absent deterrence, UNRWA’s ever-growing beneficiary population will continue to reproduce the same incentives, thereby indoctrinating more children and enlarging the ensuing risks.31 The U.S. Government’s description of UNRWA as a “subsidiary of Hamas” is therefore hardly rhetorical; on the record as pleaded, it captures the extent to which the two are intertwined and the danger that UNRWA thus poses. II. The Doctrine: UNRWA Fails the Test for UN Immunity One controlling legal question to be resolved is whether UNRWA is actually a UN “subsidiary organ” entitled to immunity under the Convention on the Privileges and Immunities of the UN (“CPIUN”). The analysis begins, as it must, with the operative text. CPIUN Article II, Section 2 grants immunity to the “United Nations, its property and assets,” while Article IV, Section 11, in turn, grants privileges and immunities to “Representatives of Members to the principal and subsidiary organs of the United Nations” – i.e. individuals who represent member states. Nothing in the CPIUN grants immunity to the organs themselves. Nor does the UN Charter. Article 22 of the UN Charter provides only that “[t]he General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions,” and under Article 10, those functions are limited to the power to “discuss any questions or any matters” within the Charter’s scope and to “make recommendations.”32 As the plain text of these treaties does not clearly establish whether the UN’s immunity extends to subsidiary organs or the concrete universe of entities that ultimately qualify as “subsidiary organs,” the Executive Branch’s interpretation enters the analysis.33 Where the text is genuinely open to more than one reading, the Executive’s interpretation is entitled to “great weight” and the court should defer to it, provided it is consistent with the treaty’s text and purpose.34 Here, the reversal in position from the Biden Administration to the Trump Administration does not defeat deference – what commands weight is the Executive’s current interpretation, since the Executive is the branch presently charged with interpreting and enforcing the treaty. In these cases, “the United States’ view is that UNRWA is not immune from this litigation,” and the courts should deny UNRWA’s motions to dismiss.35 For international organizations and their subsidiary bodies specifically, immunity in American courts is not a status an entity carries with it from abroad. Under the IOIA/CPIUN framework at issue here, it is an entitlement that can only exist if granted specifically and intentionally by the United States, constituting domestic law that “Congress and the Executive Branch have together established.”36 That formulation makes explicit what UNRWA’s immunity argument seeks to obscure: immunity in American courts is not a given for every entity with UN affiliation. It requires domestic legal authorization, which UNRWA plainly lacks. The Government’s filed Statement of Interest in the D.C. litigation squarely attacks UNRWA’s central claim that it is a subsidiary organ of the United Nations entitled to immunity under the operative treaties: the CPIUN and UN Charter. Its lead argument is textual: under Article 22, a General Assembly subsidiary organ must perform functions necessary to the Assembly’s own work, which the Charter plainly limits to deliberative and recommendatory acts. UNRWA’s functions are operational, not deliberative, and therefore fall outside the Charter’s conception of a General 31. Id. at ¶¶ 210, 215–217, 221–231, 235. 32. UN Charter arts. 10, 22. 33. Abbott v. Abbott, 560 U.S. 1, 13 (2010) (internal quotation marks omitted) (quoting Medellín v. Texas, 552 U.S. 491, 506 (2008)). 34. Id. at 15 (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982)); Brzak v. UN, 597 F.3d 107, 112 (2d Cir. 2010). 35. U.S. SOI, supra note 1, at 1. 36. Id.
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