On 15 July 2020, Carmine Mario Paciolla, an Italian citizen working with the United Nations (UN) Verification Mission in Colombia, was found dead in his home in San Vicente del Caguán, in the Department of Caquetá, Colombia. The day after Paciolla’s death, a team of the Special Investigation Unit of the UN Department of Safeguard and Security collected all his personal belongings and cleaned up the apartment where he was living. No official of the General Prosecutor of Colombia or of the Colombian judicial police was present at this time. The staff of the UN Verification Mission was reminded that they were under an obligation to maintain confidentiality.[1] The Italian judicial authorities have, since August 2020, sought the cooperation of the UN to clarify the facts of the case and establish any responsibility.[2]
On 8 April 2021, before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies, in responding to Question No. 5-05685 on the actions of the Italian Government in relation to Paciolla’s death, the Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Manlio Di Stefano, stated:
On 10 August 2020, in a phone conference, the UN Secretary General, Antonio Guterres, reassured Minister Di Maio that the United Nations would provide full and unconditioned support to the investigation, both at the central level and through the Mission in Colombia, in order to shed light on the tragic event. The case had already been discussed during a videoconference between then-Prime Minister Conte and the Secretary General Guterres, on 22 September 2020, on a side to the 75th session of the UN General Assembly. Thanks to these interventions, supported by a relentless awareness-raising action carried out also by our Permanent Mission in New York, the competent UN offices, in particular the Office of Legal Affairs (OLA), have established an effective and productive dialogue with the Office of the Prosecutor in Rome, which, as is known, is responsible for the Italian investigation into Paciolla’s death. In fact, the OLA has readily responded to the request for international judicial assistance formulated by our judicial authorities since August 2020. Moreover, thanks to our diplomatic action, the UN Secretary General has suspended the immunity of the UN officials who worked with Carmine Mario Paciolla at the Verification Mission in Colombia, so as to allow the Italian prosecutors to summon them to testify in the course of the ongoing investigation, which is still confidential.
The case, which casts a long shadow on the role of the UN in the matter of the Organization’s responsibilities towards its own personnel, also raises questions on the issue of immunities of UN staff. In this respect, the Undersecretary’s response raises two interrelated issues. First, does the scope of the immunity of UN personnel extend to cases in which UN agents have been summoned to testify before national judicial authorities in the course of a criminal investigation? And, second, what are the powers of the UN Secretary-General in relation to the immunity enjoyed by the UN personnel vis-à-vis the imperatives of justice in such cases?
It is worth noting that these questions are relevant also in light of the murder of Italian Ambassador Luca Attanasio, killed in an armed attack in the province of North Kivu in the Democratic Republic of the Congo. Attanasio’s death calls into question the responsibility of the UN given that, at the time of the events, the Ambassador was accompanying a convoy of the World Food Programme. On 30 December 2021, a parliamentary intervention before the Chamber of Deputies (623rd Meeting, XVIII Legislature) asked the Italian Minister of Foreign Affairs to report to Parliament how he intends to ensure that the UN waive the immunity of a UN official responsible for the security of the convoy and who is being investigated for breaching his duty of care.[3]
Articles 104 and 105 of the UN Charter lay the foundations for the immunities of the UN and its personnel. In particular, Paragraph 2 of Article 105 states that “[r]epresentatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization” (emphasis added). In addition, Article V, Section 18, of the Convention on the Privileges and Immunities of the United Nations (CPIUN) states that UN officials shall “[b]e immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity” (emphasis added). As the wording of the UN Charter and the CPIUN suggests, the immunity enjoyed by the UN personnel is functional in nature. This is meant to allow international civil servants to perform their functions independently and free from State interferences.[4]
In order to determine the scope of this type of immunity, it is therefore necessary to understand both to whom it applies, that is to say, who is to be considered a UN agent protected by the immunity regime, and what it protects UN agents from.
The International Court of Justice (ICJ) provided an answer to the first question in its Reparation advisory opinion, where it stated that
The Court understands the word ‘agent’ in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions – in short, any person through whom it acts.[5]
This would include “officials”, that is, “members of the UN Secretariat, staff members of Funds and programs who are appointed in accordance with the UN Staff Rules and Regulations, and staff members of the secretariats of certain treaty bodies which have an institutional link to the UN” as well as “[p]ersons who are engaged in full-time duties, and who are directly responsible to the General Assembly or another UN organ”,[6] in addition to “experts on mission” and unpaid functionaries such as volunteers or interns.[7]
As for the scope of jurisdictional immunity, it has been interpreted by the UN
in accordance with the standard definition as comprising the entire judicial proceedings, including the writ, mandate, summons or act by which the court assumes jurisdiction and compels the appearance of the defendant and witnesses and acts of execution, as well as other acts on the part of public authorities, such as arrest and detention in custody, in connection with legal proceedings.[8]
Thus interpreted, jurisdictional immunities seem to protect UN agents from acts by which a court or a public authority seek to compel them to testify as witnesses in any domestic legal proceedings “in respect of words spoken or written and all acts performed by them in their official capacity”. The fact that the UN agents who worked with Paciolla were summoned to testify in the course of a criminal investigation as opposed to a criminal trial does not seem to be relevant both in light of the rationale for the interpretation of “legal process” provided by the UN and in light of Italian procedural law, which draws a parallel between the witness in a criminal trial and the informant (persona informata sui fatti) in a criminal investigation.
As for the extent of the UN Secretary-General’s powers in relation to the immunity of UN staff when justice would require setting immunity aside, it must be noticed that the Secretary-General has a pivotal role in the determination of what constitutes an official act for the purposes of asserting immunity for a given UN agent. In the Cumaraswamy advisory opinion, the ICJ stated that
The Secretary-General, as the chief administrative officer of the Organization, has the primary responsibility to safeguard the interests of the Organization; to that end, it is up to him to assess whether its agents acted within the scope of their functions and, where he so concludes, to protect these agents, including experts on mission, by asserting their immunity.[9]
Article V, Section 20, of the CPIUN establishes inter alia that “[t]he 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 practice, however, it is the OLA that makes this decision.[10] As the wording of Section 20 suggests, when maintaining the immunity would obstruct the course of justice, the Secretary-General has not only a right, but also a duty to waive the immunity.[11] When a UN agent is summoned to testify before national authorities, the decision as to whether their immunity should be waived to allow them to provide testimony is a matter that is to be decided on a case-by-case basis. The Secretary-General could refuse to waive the immunity of the agent if he or she deems that allowing them to testify would harm the interests of the UN. It is worth recalling an OLA opinion of 1978, which stated that
The United Nations authorizes officials to appear and to testify on specific matters within their official knowledge provided (1) that there is no reasonable effective alternative o such testimony for the orderly adjudication or prosecution of the case; and (2) that no significant United Nations interest would be adversely affected by the waiver. The authority to waive the immunity and to authorize the testimony has been delegated to the Legal Counsel.
Occasions for the authorization and waiver are limited to cases in which the subject matter within the official’s knowledge may be made public without giving rise to any problem as regards, for example, privileged papers or controversial political issues. Most frequently, where testimony by officials is required for criminal cases where cross examination is anticipated, we have had prior consultation with the attorneys requesting the appearance concerning the area of questioning. […]
When staff members are authorized to appear and to testify on a particular subject matter, they are implicitly authorized to take whatever oath or to make whatever affirmation is necessary for the testimony to be admissible. Given the conditions for the waiver and authorization, the oath to testify truthfully would not, in our view, give rise to a conflict with the staff member’s obligations under the Staff Regulations.[12]
In light of the above, it is possible to conclude that the Italian request to the UN Secretary-General to lift the immunities of those UN officials who may have some knowledge of the circumstances surrounding Paciolla’s death aligns to and is supported by the law and practice of the UN.
Piergiuseppe Parisi
A quotable version of this post was published in the Italian Yearbook of International Law: Parisi, “The Scope of the Immunity of United Nations Personnel”, IYIL XXXI (2021), 2022, pp. 499-504; available here.
[1] Duque, “Las movidas de la Misión de la ONU en caso Mario Paciolla”, El Espectador, 31 July 2020.
[2] “Mario Paciolla, due inchieste e ancora nessuna verità”, Il Manifesto, 22 April 2021.
[3] According to the interrogating Member of the Parliament, the UN invoked the immunity of one of its officials based on the fact that the UN World Food Programme is headquartered in Italy.
[4] Walter and Preger, “Immunities of Civil Servants of International Organisations”, in Ruys, Angelet and Ferro (eds.), The Cambridge Handbook of Immunities and International Law, Cambridge, 2019, p. 542 ff., p. 545; see also the Report of the Rapporteur of Committee IV/2, as Approved by the Committee, in Documents of the United Nations Conference on International Organization (1945), Volume XIII, Doc. 933, Series IV/2/42(2), p. 705, which states that “[t]he terms privileges and immunities indicate in a general way all that could be considered necessary to the realization of the purposes of the Organization […] and to the independent exercise of the functions and duties of their officials”.
[5] ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, p. 174 ff., p. 177.
[6] Walter and Preger, cit. supra note 4, p. 547; see also Bandyopadhyay and Iwata, “Officials (Article V Sections 17-21 General Convention)”, in Reinisch (ed.), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary, Oxford, 2016, p. 313 ff.
[7] Walter and Preger, cit. supra note 4, pp. 549-550; for a definition of “experts on mission” see also International Law Commission (ILC), “The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency concerning Their Status, Privileges and Immunities: Study Prepared by the Secretariat”, YILC, Vol. II, 1967, p. 154 ff., p. 284, para. 340.
[8] ILC, cit. supra note 7, p. 266, para. 250.
[9] ICJ, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, ICJ Reports 1999, p. 62 ff., para. 46.
[10] Walter and Preger, cit. supra note 4, p. 556.
[11] See also Miller, “Privileges and Immunities of United Nations Officials”, IOLR, 2007, p. 169 ff., p. 242.
[12] United Nations Juridical Yearbook, 1978, pp. 191-192.
Italy's Diplomatic and Parliamentary Practice on International Law 