“No one is above the law,” Kamala Harris says when speaking of her rival, former President Donald Trump.
But the Harris-Biden administration is arguing in federal court that lots of people are above the law — in particular, the many UN employees who helped Hamas build its terror facilities and launch its genocidal pogrom on Oct. 7.
In June, some victims of the Oct. 7 massacre filed suit in New York, where the United Nations is based, against the UN Relief and Works Agency for Palestine Refugees, alleging that UNRWA and its officials have aided and abetted Hamas.
Evidence of UNRWA’s wholesale collaboration with the designated terror group is abundant, and goes back years.
“Oh, I am sure that there are Hamas members on the UNRWA payroll, and I don’t see that as a crime,” then-UNRWA Commissioner-General Peter Hansen stated in 2004.
Twenty years later, many UNRWA staffers participated directly in the Oct. 7 terror attack, while others imprisoned and tortured the hostages afterward.
The United Nations, which claims to be dedicated to advancing human rights, has pledged that it will waive any claims to immunity for acts of terror.
Nonetheless, it responded to the victims’ lawsuit by invoking immunity for itself and its employees.
And this week, news broke that the United States Department of Justice has joined that effort, filing a submission to the US District Court arguing that both UNRWA and its workers should have “absolute immunity” from suit.
As the first anniversary of Oct. 7 approaches, the DOJ is lawyering for some of the attack’s perpetrators.
The DOJ letter asserts that the UN officials have immunity under the 1945 International Organizations Immunities Act.
Indeed, the United States has historically supported a broad interpretation of UN immunity — but despite significant prior misdeeds, UN agencies have never before been structurally intertwined with a US-designated terror group, or had numerous employees carry out mass atrocities.
And the administration’s defense of the UN-Hamas terrorists is not only ugly — it is legally unnecessary.
For one, it is not clear that IOIA immunity applies to the UN’s myriad affiliated agencies, an argument that was recently rejected by the DC Circuit Court.
UNRWA, which receives most of its funding from outside the UN, is quite plausibly not covered by the IOIA.
But even if the IOIA does apply to UNRWA, it does not give UN employees a license to kill.
In 2019, the Supreme Court ruled that IOIA only affords international organizations the same immunity from suit that foreign governments enjoy under the Foreign Sovereign Immunities Act.
The rationale is simple: It would be absurd to give the UN more immunity than the countries that created it.
Under the FSIA, sovereign immunity does not extend to support for terrorism, and allows the president to designate “state sponsors” of terror that can be sued for such acts — a list that currently includes Hamas’ patron, Iran.
By extension, the Harris-Biden administration could have determined that by partnering with a State Department-designated foreign terror group, UNRWA can also be sued.
In short, the administration was not legally compelled to argue that UNRWA enjoys greater immunity than foreign countries and former presidents.
This is a policy decision DOJ has chosen to make.
Under the UN Charter, its officials are entitled to such “privileges and immunities as are necessary for the independent exercise of their functions.”
The United Nations thus claims that immunity from civil suits for invading a country and massacring its citizens is “necessary” for the exercise of its functions — and President Biden and Kamala Harris apparently agree.
If immunity for mass murder is necessary for the UN’s functioning, maybe it is time to rethink the UN entirely.
The administration’s position underscores the need for the Limiting Immunity for Assisting Backers of Lethal Extremism (LIABLE) Act, introduced by Sen. Ted Cruz (R-Texas) in March.
This measure would explicitly allow international organizations to be sued for promoting terror, just like countries like Iran can be — a consequence that might finally give UN leaders an incentive to provide meaningful oversight and control, rather than a blank check and legal impunity, to UNRWA and other agencies.
As a former prosecutor, Kamala Harris should approve.
Mark Goldfeder is director of the National Jewish Advocacy Center. Eugene Kontorovich is a professor at George Mason University Scalia Law School.