The decision of President Biden’s Department of Justice to take the side of the United Nations on the question of whether the United Nations Relief and Works Agency is owed immunity for October 7 underscores the damage to American sovereignty inflicted by the United Nations Treaty. As victims of Hamas terrorism turn to American courts, our government is on the back foot and the wrong side.

Resistance, though, is rising against immunity for terrorists. A new amicus brief in the case — Estate of Tamar Kedem Siman Tov v. United Nations Relief and Works Agency — argues that Unrwa’s complicity in October 7 is undeserving of immunity. Its authors include a former attorney general, Michael Mukasey; General Keith Alexander, a retired Army four-star; the president of the Heritage Foundation, Kevin Roberts; and the sage Eugene Kontorovich.

The amici aim to hold Unrwa accountable for its part in what they call a “modern-day pogrom.” The suit alleges that the organization and its chief, Philippe Lazarinni, “continuously funneled U.S. dollars to Hamas for over a decade” and “enabled the construction of terrorist infrastructure.” The victims also make the case that Unrwa employees “participated in the October 7 atrocities.” The organization has acknowledged such involvement. 

This brief argues that “knowingly funding Hamas terrorists is clearly outside” Unrwa’s mandate. It reasons that the “functional immunity generally afforded to U.N. employees does not cover many of the primary allegations,” because the assistance rendered to Hamas was ultra vires, or outside any performance of a legitimate duty. The rot’s breadth and depth — bottom to top —  mean that even diplomatic immunity does not avail.

Of special salience could be the argument that the commissioner-general of Unrwa — Mr. Lazarinni and his predecessor, Filippo Grandi, are both named in the suit —  cannot hide behind immunity. The UN Immunities Convention, the brief argues, covers only “the Secretary-General” of the UN “and all Assistant Secretaries General.” A commissioner-general, it is argued, was not contemplated.

In urging Judge Analisa Torres of the Southern District of New York to reject the Biden administration’s view that Unrwa is immune, the amici argue with one hand tied behind their back — through no fault of their own. The Constitution ordains that treaties are equal to federal law and the constitutional parchment itself as the “supreme law of the land.” America’s signature on a raft of conventions is armor for rogues like Unrwa.

Judge Torres is bound by the the Second Circuit of the United States Court of Appeals ruling that the UN is “absolute immunity from suit unless it has expressly waived its immunity.” The secretary-general, who has been declared persona non grata by Israel, refuses. That is enough for the Biden administration, though the jurist could yet be convinced by these august amici that there are paths to prosecute the pogromists.

The spectacle of the DOJ siding with Unrwa could be a catalyst to reconsider the arrangements that have brought our courts to this impasse on immunity. It is a reminder that the bargaining away of sovereignty as the price of participation in the UN is not a negligible cost. The Sun opposed the League of Nations in 1919, saying that we opposed “yielding by a millimeter’s breadth of any portion of American sovereignty.”