Oil-for-Food Investigation: Lifting Diplomatic Immunity

Kofi Annan announced yesterday that he has suspended the two senior UN diplomats at the center of the Volcker Commission’s Report on misconduct in the Iraq Oil-for-Food Program. The suspension appears to be the first step toward lifting diplomatic immunity, which Annan said he would do if facts support the bringing of criminal charges. Apart from the importance this investigation has to the issue of real accountability within the UN, which we have discussed previously here, here and here, it raises some interesting questions about diplomatic immunity. Why do UN diplomats have diplomatic immunity? And why does the Secretary General have sole discretion to lift it?

The notion that diplomatic emissaries representing foreign states should not be subject to the laws of the state to which they have been sent is one of the oldest and most central tenets of international law. The rationale is pretty obvious: allowing foreign diplomats to carry out their duties requires protection from political harassment through criminal prosecution or civil suits in foreign states. While the scope and terms of diplomatic immunity developed as part of of customary practice, it was codified in the Vienna Convention on Diplomatic Relations of 1961.

Like many international treaties and customs, the rules governing diplomatic and consular immunity are perfectly suited to enforcement through reciprocity. Thus, when state X decides for any reason to declare a diplomat from state Y “persona non grata” and expel her according to the terms of the Convention, state Y will often respond by a retaliatory declaration of “persona non grata” of a state X diplomat posted in state Y. This is usually enough to prevent undue harassment of diplomats who are simply doing their jobs. Real problems arise when diplomats are accused of crimes that even the sending state recognizes are outside the scope of one’s diplomatic duties and the host state wants to prosecute, rather than let the diplomat return home. Fortunately, the protections of diplomatic and consular immunity are not entirely absolute, as this guidebook from the State Department explains. At the end of the day, the immunity belongs not to the individual diplomat, but to the state the diplomat represents. If the sending state has no interest in protecting the diplomat from prosecution, it may lift the immunity and let the diplomat fend for himself. (This is precisely what happened in 1997 when the government of Georgia lifted the immunity for a Georgian diplomat who was subsequently prosecuted and convicted of negligent homicide of a pedestrian in Washington DC.)

Applying the same rationale of diplomatic immunity to the United Nations, i.e., that UN diplomats need protection from arbitrary application of local law to do their jobs, certain designated employees of the UN operate with the protection of immunity under the Convention on Privileges and Immunities of the United Nations. The Convention specifically provides that:

The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of Justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity.

If additional facts emerge that warrant crminal prosecution of the two officials (the current report only cites misconduct, not criminality), only the Secretary General is in a position to lift their diplomatic immunity. Here, Annan appears to be under sufficient pressure from UN member states that he is likely to live up to his word and lift immunity if it comes to that. Indeed, it would be hard to argue that keeping immunity in place would not prejudice the interests of the United Nations. Because the Secretary General’s term is limited and depends on the nomination of the Security Council and the vote of the General Assembly, it seems to me sufficient that he has sole discretion to designate those protected by immunity and to lift that immunity when the facts warrant.

The broader issue of immunity for criminal acts by UN representatives– particularly in conflict and post-conflict situations — has prompted some debate. Military personnel assigned as peacekeepers generally remain under the jurisdiction of their sending state for any crimes committed while on duty (or, for war crimes and crimes against humanity, under the jurisdiction of the ICC). Other officials, for example UNIMIK and KFOR officials in Kosovo, generally have been granted immunity under the terms of their UN mandate, much to the consternation of certain human rights groups, who view immunity as an obstacle to prosecuting any “bad apples” assigned to these international missions.