The Counterterrorism Blog: Does the Volcker Commission Have Diplomatic Immunity? The Answer is Unclear.
counterterror.typepad.com
By Victor Comras
It looks like we are headed for a major confrontation between Senator Norm Coleman, R-Minn., the chairman of the Senate Permanent Subcommittee on Investigations, and Paul Volcker as to whether the Senate can compel two ex Volcker Commission investigators, Robert Parton and Miranda Duncan to testify before Coleman’s Subcommittee. The question revolves around whether Parton and Duncan are cloaked in ‘diplomatic immunity,” and, if so, who can waive it. There may not be any real clear answer to these questions. On the one hand, the members of the Independent Inquiry Committee (IIC) were appointed by Kofi Annan and given special status by UN Security Council Resolution 1538 (2004). If viewed as “officials” of the United Nations, or as “Experts on Missions for the United Nations", they possess “diplomatic immunity" under the provisions of the 1946 Convention on the Privileges and Immunities of the United Nations to which the United States is a party.
The problem is that it is not clear whether the Secretary General’s letter of appointment specified in any way that the group would enjoy the immunities granted by the United Nations Charter or by the 1946 Convention. And, according to the IIC website, the IIC has always viewed itself as separate from the United Nations. “Although the Committee members were appointed by UN Secretary-General Kofi Annan,” their official website states, “the IIC is an independent body. The Committee’s employees are not UN staff. The recruitment of investigators and other staff has been undertaken outside the UN personnel structure. No UN personnel work at the IIC with the exception of 3 support staff on loan from the UN, who deal exclusively with administrative issues.”
Article V of the 1946 Convention on the Privileges and Immunities of the United Nations deals with United Nations “Officials.” And Article VI covers “Experts on Missions for the United Nations.” The Secretary General is empowered to “specify” the categories of “officials” and “Experts on Missions” who are entitled to “UN privileges and immunities.” Once specified, such officials and experts are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity;” And according to the Convention ‘this immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations.” But, there is also another proviso which states that these “privileges and immunities are granted …in the interests of the United Nations. The Secretary-General has the “right and the duty” to waive them, if, in his opinion “immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.” The convention also calls on the United Nations to “cooperate at all times with the appropriate authorities of Members to facilitate the proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this Article.”
The Secretary General is reportedly now reviewing whether or not it would be appropriate to waive diplomatic immunity in this matter. According to UN Spokesperson, Stéphane Dujarric. the Secretary General will consult closely with Volcker on this issue to determine Volcker's wishes in the matter. |
