The General Assembly Must Protect UNRWA by Requesting a Binding Advisory Opinion

The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), a subsidiary organ of the General Assembly, provides a lifeline for hundreds of thousands of Palestine refugees. Their dependency on UNRWA — and consequently the importance of the Agency’s work — is greater than ever before. In spite of this situation, or perhaps because of it, the Israeli Knesset on 28 October 2024 adopted legislation aimed at dismantling the Agency by effectively revoking its privileges and immunities.

Under the adopted legislation, UNRWA “shall not establish any representation, provide any services or conduct any activities” in the territory of Israel. No Israeli government agencies or representatives may have any contact with UNRWA. It is also reported that Israeli authorities are evicting the Agency from its premises in Jerusalem. The egregious nature of these breaches is compounded by the fact that they are being carried out in the context of Israel having over the last year physically destroyed numerous UNRWA buildings and killed more than 200 of its personnel.

Israel has alleged that UNRWA officers participated in the attack carried out by Hamas and other armed groups on 7 October 2023. This led UNRWA to fire nine staff members, as it was found that they had been involved in the attack. The Colonna Report, a United Nations review conducted by former French foreign minister Catherine Colonna, found that Israel had not provided supporting evidence of claims that employees of UNRWA were members of terrorist organizations. It found that UNRWA had every year shared staff lists, which included names and functions, with Israel as well as other States. Since 2011 Israel had not informed UNRWA of any concerns relating to any UNRWA staff. Israel’s view, however, was that the Colonna review was insufficient and an effort to avoid the problem rather than to address it properly.

UNRWA’s Commissioner-General, Philippe Lazzarini, told the Security Council on 9 October 2024 that the legislation laid before the Knesset, and now adopted, sought “to ban UNRWA’s presence and operations in the territory of Israel, revoking its privileges and immunities, in violation of international law”. At the same Council meeting, Permanent Representative Linda Thomas-Greenfield observed that the United States was “following with deep concern the Israeli legislative proposal that could alter UNRWA’s legal status, hindering its ability to communicate with Israeli officials, and removing privileges and immunities”. The Permanent Representative of the United Kingdom, Dame Barbara Woodward, a consummate performer of the art of English understatement, expressed “concern” at any efforts to undermine UNRWA.

The passing of this legislation, like the seizure of UNRWA’s premises in Jerusalem, is inconsistent with international law. There exist — as UN Legal Counsel Carl-August Fleischhauer correctly stated on behalf of the United Nations in Section 21 of the United Nations Headquarters Agreement of 26 June 1947, I.C.J. Reports 1988, p. 20, para. 18 — situations in which the obligations of a State under international law are “violated by the legislation in question” itself, it being no excuse to seek to argue that the legislation in question has not yet been implemented (cf. ibid., p. 19, para. 17; see also Section 3 of the General Convention on the Privileges and Immunities of the United Nations as regards “legislative action”).

The Israeli legislation is designed finally to rid Israel of what it seems to consider the evil of a United Nations relief agency for Palestine refugees. It is incumbent on the General Assembly, faced with an outrage of this kind against one of its subsidiary organs, to do everything in its capacity to protect the Agency.

The privileges and immunities necessary for the United Nations and its officials to function in the territory in each of its Members are protected by the Charter. Article 105(1) provides that: “The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.” They are set out in greater detail by the General Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly in its resolution 22 A (I) of 13 February 1946. Section 3 of the General Convention provides that:

“The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.”

The inviolability is absolute: it admits of no qualification. It is no excuse, for example, to argue that it could be overridden by the demands of military expediency or security. The reason why this is so was explained by UNRWA’s General Counsel in the years 1966–8, Derek Bowett (later Sir Derek Bowett QC, Whewell Professor of International Law, University of Cambridge) when Israel had committed certain violations against UNRWA in the context of the the Six Day War. Bowett reportedly explained, in an as yet unpublished Memo of 14 February 1968 entitled “1967 Claims against Israel”, exactly what it meant that the installations and property of UNRWA were inviolable. This inviolability, he observed, was an essential and particular aspect of the more general immunity of the Organization provided for in Article 105 of the Charter. As such, it could not be set aside by any Member State on the ground that, in the special circumstances of hostilities, the inviolability of United Nations premises and property must be qualified or overridden by the demands of military expediency. The United Nations Charter and the Convention of 1946 allowed of no such qualification, he reasoned.

Bowett’s Memo reportedly added that such installations and property represented the investment of the United Nations in a task entrusted to the Agency by the General Assembly, so that any act of destruction or damage, directed against such installations or property, had the direct result of destroying the investment made by the United Nations, from funds contributed by many Member States, and of imposing additional financial burdens on the United Nations. As the Court observed in Reparations, which concerned outrages against only one of its agents, violations of this kind “might involve very considerable expenditure” for the United Nations (I.C.J. Reports 1949, p. 181).

The position set out in Bowett’s Memo as regards absolute inviolability became the consistent position of the United Nations Organization. It was reportedly adopted in the late 1960s in a Memo (also as yet unpublished)  by F. Blaine Sloane, Director of the General Legal Division of the Office of Legal Affairs 1966–78. The choice of words became the standard wording of the Office of Legal Affairs in questions relating to the privileges and immunities of the Organization under the Charter and the General Convention.

Thus a more recent (and published) memo of the Office of Legal Affairs, an 11 July 2003 note relating to the privileges and immunities of the United Nations Assistance Mission in Afghanistan (UNAMA) during times of armed conflict, provided that the General Convention:

“does not contain anything to the effect that the privileges and immunities for which it provides are subject to abridgement or qualification in times of internal unrest or even in times of armed conflict. Indeed, it has been the consistent position of the Organization that the General Convention applies in such circumstances just as much as it does in times of peace and that the privileges and immunities for which it provides may not be qualified or overridden by any demands of military expediency or security” (UN Juridical Yearbook 2003, p. 522, para. 11; see also Draft Articles of the ILC on the Effect of Armed Conflict of Treaties, Articles 3 and 7).

Similarly, after the conflict in the Gaza Strip in 2008–9, the Secretary-General established a Board of Inquiry (which included the recently retired Assistant Secretary-General for Legal Affairs, Larry Johnson). The Board of Inquiry reasoned that direct and intentional strikes carried out by Israel on UNRWA premises in Gaza “amounted to an egregious breach of the inviolability of the United Nations premises and a failure to accord the property and assets of the Organization immunity from any form of interference” (para. 16). The Board recalled that United Nations premises were inviolable and that the inviolability “could not be set aside by any Member State on the grounds that, in the special circumstances of hostilities, it must be qualified or overridden by demands of military expediency” (para. 91). The Board notably made findings as to the losses sustained by UNRWA as a consequence of Israel’s breaches of its inviolability “with a total estimated repair and replacement cost of more then $10.4 million” (para. 104). Israel agreed to pay the amount of compensation determined by the Board.

Leading commentators have confirmed the interpretation that there can be no exception from the inviolability of United Nations organs. Rosalyn Higgins and others explain in Oppenheim’s International Law: United Nations, p. 574 that “[t]he failure to respect the inviolability of UN premises in time of armed conflict may not be justified on grounds of military expediency” (see also August Reinisch (ed), Commentary to the General Convention, p. 133).

What, then, needs to be done in the face of the Israeli action? As a precursor, it is important that the Secretary-General, in accordance with his authority and responsibility “as the chief administrative officer of the Organization” (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, I.C.J. Reports 1999, p. 84, para. 50) ensures the due publication of the relevant legal opinions of UNRWA and the Office of Legal Affairs.

As regards the General Assembly, it must act to protect its subsidiary organ UNRWA and its privileges and immunities. As the Court has observed, the United Nations “is itself intimately, and for the most part directly, concerned with the operation of the General Convention” (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, I.C.J. Reports 1989, p. 189, para. 33). On this basis, the General Assembly should, acting under the dispute settlement provision in Article VIII, Section 30, of the General Convention, request an urgent advisory opinion from the Court as regards Israel’s actions in relation to UNRWA. Article VIII, Section 30 provides that:

“If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court.”

The final sentence provides, crucially, that “[t]he opinion given by the Court shall be accepted as decisive by the parties.” This provision is a “classic example” of a binding advisory opinion of the Court; “it foresees both an obligation to apply to the Court to consider a dispute within the framework of the advisory procedure, and the obligation of the parties, including the Organization, to accept the resulting opinion as settlement of the dispute” (R. Ago, “‘Binding’ Advisory Opinions of the International Court of Justice” (1991), vol. 85, AJIL, p. 446). As the Court has explained, “such ‘decisive’ or ‘binding’ effect” is derived from Article VIII, Section 30, itself (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 77, para. 25). It would be necessary for the General Assembly to express clearly that the request is indeed for a binding advisory opinion under Article VIII, Section 30, and not an ordinary and non-binding advisory opinion relating to privileges and immunities (cf. I.C.J. Reports 1989, p. 190, para. 34).

The General Assembly should — when a difference can properly be said to have arisen between the United Nations on the one hand and Israel on the other — request the Court urgently to render an advisory opinion on the question of whether Israel is in breach of UNRWA’s inviolability. It should give the Court the opportunity to advise, with binding effect, on whether it is correct to say, as has been the consistent position of the Organization itself, that this inviolability may not be set aside on the ground that it must be qualified or overridden by demands of military expediency. This would lay the foundations, finally, for the General Assembly, on the same occasion or on a subsequent one, to request the Court’s binding advice as to the legal consequences of Israel’s breaches and the question of reparation, including compensation, for the damage caused by its internationally wrongful acts. It has been pointed out by the Court itself that it is necessary that, “when an infringement occurs, the Organization should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused” (I.C.J. Reports 1949, p. 183). The General Assembly must lose no time in safeguarding the “fundamental character of the principle of inviolability” (Tehran Hostages, Judgment, I.C.J. Reports 1980, p. 40, para. 86). It must act without delay to protect UNRWA by requesting a binding advisory opinion from the Court.