UNRWA Termination in Israel: State Sovereignty vs. International Obligations

The Knesset’s Foreign Affairs and Defense Committee approved two bills on October 6, 2024 aimed at ceasing UNRWA’s operations. These bills await final readings in the Knesset Plenum, as soon as 28 October 2024 and have received support from MKs from parties in the coalition and opposition alike, with a projected majority of at least 100 out of 120 MKs.

The proposed legislation would bar any government representative from engaging with UNRWA, block Israel’s Interior Ministry from issuing entry visas to UNRWA staff, prevent customs officials from processing UNRWA imports into Gaza or Judea and Samaria, and revoke the tax exemptions currently afforded to the agency.

U.S. Ambassador Jack Lew asked opposition party leaders to agree to postpone a vote on the bill until after the November 5 U.S. presidential elections. Bismuth was also asked by members of Netanyahu’s coalition to delay the vote.

U.N Secretary-General Antonio Guterres warned that, if the legislation passes, UNRWA will be unable to continue operating and would then need to raise the issue at the UN General Assembly. “It’s deeply concerning that legislation is being considered in a member state of the United Nations that would fundamentally contradict the principles of the UN Charter,” Guterres wrote in an urgent letter to Netanyahu earlier this month. “The draft legislation currently under discussion in the Knesset, if passed, could prevent UNRWA from continuing its operations in the occupied Palestinian territories, thereby denying Palestinian refugees in Gaza and the West Bank the essential aid and protection that UNRWA has provided them since 1949,” he wrote. Guterres said UNRWA operates in nearly 400 schools and more than 65 health clinics in the West Bank. providing education to more than 350,000 children and over 5 million medical consultations annually. “UNRWA also provides vital assistance to the poor and social services,” Guterres wrote.

What does the bill entail?

The bills seek to ban UNRWA from operating within Israel’s “sovereign territory,” stating that the agency “shall not establish any representation, provide any services, or conduct any activities” within the territory of Israel. If passed, this would lead to the closure of UNRWA’s headquarters in East Jerusalem, which serves as the management and administrative hub for its operations across Judea and Samaria, and would halt all UNRWA services and activities in East Jerusalem. The bills also propose to prohibit Israeli authorities from engaging with UNRWA or its representatives (“No contact”). Additionally, they stipulate that the agreement between Israel and UNRWA, dated June 1967, which has facilitated the agency’s operations and coordination with state authorities, will expire and will not be renewed. Under this agreement, Israel committed to facilitate “the task of UNRWA to the best of its ability”. The law will take effect three months after its passage, except for the termination of the agreement, which will take effect immediately.

The proposed bills have faced widespread criticism from various international actors, including ambassadors from 123 UN member states, who voiced their support for UNRWA and their opposition to the legislation. The European Council similarly emphasized that “continued implementation of the UNRWA Action Plan is key,” and condemned any effort to abrogate the 1967 agreement between Israel and UNRWA or obstruct the agency’s ability to fulfill its mandate. US Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin also issued a joint letter, warning that “enacting such restrictions would devastate the humanitarian response in Gaza at this critical moment and deny essential educational and social services to tens of thousands of Palestinians in the West Bank and East Jerusalem”.

The termination of UNRWA’s operations in Israel, particularly if it involves actions like evicting UNRWA from its premises or legally classifying it as a terrorist organization, could indeed be scrutinized under international law and the UN Charter for several reasons:

UN Charter Principles:

Article 2 of the UN Charter emphasizes principles like sovereign equality, peaceful settlement of disputes, and refraining from the threat or use of force against the territorial integrity or political independence of any state. While these principles do not directly address the termination of UN agencies, they imply a framework where international organizations like UNRWA should operate with respect to their established roles and mandates without undue interference.

UN Charter’s Article 100: This article stipulates that the Secretariat (which includes UNRWA) shall not seek or receive instructions from any government or external authority other than the UN itself. However, it also states that member states shall respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not seek to influence them in the discharge of their responsibilities. Terminating UNRWA’s activities could be seen as an attempt to influence the operations of a UN body, which might be interpreted as contrary to the spirit of this article.

Article 105 grants the UN and its agencies privileges and immunities necessary for their independent functioning. Terminating UNRWA’s operations or denying it these privileges could be seen as a breach of this article, which ensures that UN entities can carry out their tasks without obstruction by host countries.

Specific Agreements and Resolutions:

The operations of UNRWA were facilitated by agreements like the Comay-Michelmore agreement of 1967, which Israel agreed to allow UNRWA to operate freely in the occupied territories. Terminating these operations against such agreements might violate the spirit and letter of these international commitments. UN General Assembly resolutions, including Resolution 302 which established UNRWA, would need to be considered. Although enforcement mechanisms are limited, these resolutions represent the collective will of the UN member states for UNRWA to assist Palestinian refugees.

International Law and Human Rights:

UNRWA operates under mandates from the General Assembly, which all member states, including Israel, are expected to respect. If the termination disrupts UNRWA’s mandate to provide humanitarian aid, education, and health services to Palestinian refugees, it could potentially violate international humanitarian law, which seeks to protect the rights of civilians during conflicts or in post-conflict situations. Moves to terminate UNRWA’s operations might be seen as contravening these mandates, although direct violation of a General Assembly resolution does not carry the same legal weight as Security Council resolutions under Chapter VII of the Charter.

Sovereignty and Non-Interference:

According to the UN Charter, member states are to respect the sovereignty of other nations. However, if Israel, as a sovereign state, decides to legislate against UNRWA’s operations within its controlled territories, this might not directly violate its sovereignty but could impact UN obligations.

Diplomatic and Political Implications- Legal Precedents:

Actions against UNRWA could set a precedent that undermines the integrity of the UN system and its ability to operate independently. This might also contravene the principle of cooperation with the UN as outlined in the Charter. If such actions by Israel lead to a formal complaint or resolution in the UN forums, there could be discussions or actions regarding Israel’s membership or cooperation with UN bodies. However, actual suspension from the UN would require significant procedural steps and would be based on a broader context of compliance with UN standards, not solely on this issue.

ICJ Provisional Measures – South Africa vs. Israel

Furthermore, Curbing UNRWA’s activities in Gaza could be seen as a violation of the provisional measures ordered by the International Court of Justice (ICJ) in the case of South Africa v. Israel. By obstructing UNRWA’s operations instead of facilitating them, Israel could be breaching the ICJ’s provisional measures and may also violate Articles II(a) and II(c) of the Genocide Convention, which prohibit genocide by (a) killing members of the group and (c) deliberately inflicting conditions of life intended to bring about the group’s physical destruction, in whole or in part. Ceasing UNRWA’s operations and preventing essential aid to refugees, especially in the Gaza Strip, may also amount to a war crime under Article 8(2)(b)(xxv) of the Rome Statute of the International Criminal Court (ICC), which criminalizes the intentional use of starvation of civilians as a method of warfare.

On 26 January 2024, the Court issued its first provisional measure, indicating that some actions and omissions alleged by South Africa against Israel in Gaza may violate the Genocide Convention. On 28 March 2024, the Court further ruled that Israel must “take all necessary and effective measures to ensure, without delay, in full cooperation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance.” UNRWA is seen as essential for delivering humanitarian aid and shelter to Palestinians in Gaza, providing food and medical services.

However, there are also considerations from an Israeli perspective:

Legal Perspective:It might not directly violate the UN Charter in terms of explicit legal text concerning sovereignty, but it could be considered in breach of the spirit of the Charter concerning cooperation with UN bodies and respect for UN mandates.
Security Concerns: Israel has expressed concerns over UNRWA’s involvement or alleged involvement with terrorist groups like Hamas, leading to actions justified by national security needs. From this viewpoint, Israel might argue it is exercising its sovereignty to protect its security.
Legal and Diplomatic Maneuverability: Israel, like any sovereign state, has some discretion in how it interacts with international organizations within its borders, although this must be balanced with its international legal obligations. Such a move would likely be criticized internationally, potentially leading to diplomatic friction and discussions about adherence to international law and norms.

In summary, while Israel, like any sovereign state, has the authority to regulate activities within its borders, the specific act of legislating to terminate UNRWA’s operations might raise legal and diplomatic questions: while Israel’s actions might be seen as a violation by some due to the potential infringement on UN privileges and the humanitarian impact on Palestinian refugees, others might view it as a sovereign decision in response to perceived threats or inefficiencies within UNRWA. The matter would likely need to be addressed through international legal forums or diplomatic channels, potentially involving discussions at the UN level, where the legality under the UN Charter and international law could be debated.

There is no doubt that UNRWA is a corrupt, rogue organization that is part of the problem and not the solution. Nevertheless, the proposed legislation could be more problematic for Israel than for UNRWA. Therefore, whether the termination of UNRWA in Israel constitutes a violation of the UN Charter would depend significantly on the interpretation of international law, the specifics of the agreements between Israel and UNRWA, and the broader context of international relations and security.