Asia Times: U.N. official's immunity claim galls Kuala Lumpur



	January 08, 1999	atimes.com

Media/Technology

U.N. official's immunity claim galls Kuala Lumpur
By Branko Milinkovic

THE HAGUE, The Netherlands - Does a citizen's diplomatic rolein the service of the United Nations give him or her absolute immunity fromprosecution in their home country?

Malaysia thinks not. It is objecting to some of the work and words of oneof its citizens - the distinguished lawyer Param Cumaraswamy, formerpresident of the Malaysian Bar Council, now working for the U.N. Commissionon Human Rights (UNCHR).

Cumaraswamy, the UNCHR's Special Rapporteur on the Independence of Judgesand Lawyers, is being sued several times over in the Malaysian courts byfour different plaintiffs.

All allege that Cumaraswamy, whose three-year U.N. mandate was renewedthis year, defamed their character in comments published in an interviewgiven to the British based International Commercial Litigation magazine in1995.

The Malaysian government says that his alleged comments, published in anarticle titled 'Malaysian Justice on Trial' in November 1995, do not enjoy''absolute, personal legal immunity''. The plaintiffs' claim a total 112million dollars in damages.

Cumaraswamy's defenders say Malaysia's true aim is to rein in U.N.officials who question its rights record.

Malaysia argued before an International Court of Justice (ICJ) hearing inthe Hague this month, that human rights rapporteurs should operate under anagreed 'code of conduct'. It accuses the U.N. of using ''undeveloped''methods in its ''zeal'' to get the world's nations to meet global humanrights standards.

The U.N. human rights effort relies heavily on the work of specialrapporteurs like Cumaraswamy. Currently the UNCHR has 16 at workscrutinising human rights situation in specific countries. Another 14 workon so-called 'thematic mandates', like Cumaraswamy, tackling issues such astorture, disappearances, freedom of expression, right to development andothers.

U.N. Secretary-General Kofi Anna says that Cumaraswamy spoke in hisofficial capacity as Special Rapporteur, and maintains that he has immunityunder the 1946 U.N. Convention on Privileges and Immunities, which has beensigned and ratified by Malaysia.

''This (case) is about the independence of the U.N. special rapporteurs,which should not be subjected to any kind of political or legal pressure,''says Theo van Boven, a Dutch professor of international law and formersenior United Nations human rights official.

But Malaysian Solicitor-General Heliliah Mohd Yusof told the ICJ hearingthat part of the problem ''lies in the relatively undeveloped state of theprocedures and devices which the United Nations has come to utilise in itszeal for methods of ensuring compliance with human rights standards.

Yusof said the rapporteurs were not sufficiently ''guided'' as to the''suitable limits of their comments'' about rights abuses.

''We take heed of the Secretary-General's concern for proper advancementof the United Nations Human Rights system and that includes the use ofSpecial Rapporteurs to look into the questions that arouse concern,'' shesaid, ''but the efficient operation of the system of Special Rapporteursdoes not require that they should be put above the law or even outside it."

Peter Baehr, former director of the Netherlands Institute of Human Rightssuspects Malyasian motives. He compares the case with a 1989 ruling givenby the ICJ in the case of Romanian Dumitru Mazilu, then the U.N.'s specialrapporteur on human rights and youth.

The then communist Romanian government objected to Mazilu's activities andtried to shut him down. ''Romania refused him a travel permit andquestioned his immunity, (but the ICJ) found that he should enjoy immunityas the U.N. expert on mission,'' Baehr said. ''I believe that the court'sopinion in the Cumaraswamy case will have a stronger impact."

The detail of Malaysia's case rests on the issue of whether Cumaraswamyhas blanket immunity in everything he does, or whether that immunityapplies only when he is acting as a Special Rapporteur.

If the latter, Yusof argued, then it was reasonable for a Malaysian courtto first rule on whether the offending act was not part of his U.N. duties,and if not -- to prosecute him accordingly.

Not so, countered Hans Corell, U.N. under-secretary-general for legalaffairs in his representation to the Dec. 7-11 ICJ hearing, which also tookcontributions from Costa Rica, Germany, Italy, Sweden, Britain and theUnited States.

''United Nations experts are entitled to privileges and immunities not asa private persons but as U.N. agents on the basis of the functionalimmunity,'' he said. ''Therefore, it should be only for theSecretary-General and not for the national courts to decide which action ofthe U.N. expert has been performed in an official capacity'',

But the potential implications the case poses for the U.N. and its humanrights work were underlined during the hearings by Sir Elihu Lauterpacht,honorary professor of international law at Britain's Cambridge University.

In his case for Malaysia, he examined the legal concept of immunity inbroad historic and comparative terms, citing several past cases involvingdiplomats, states, consuls and foreign armed forces.

Lauterpacht argued strongly that the U.N. convention did not give Annanthe right to overrule national courts who believed Cumaraswamy's commentson the Malaysian judiciary did not enjoy immunity under internationalconventions.

''Malaysia sees the Secretary-General as asserting a right not accorded tohim by this convention since he wants to decide a question that initiallyfalls within the exclusive province of Malaysia's courts,'' Lauterpachttold the ICJ.

But Corell and others say that allowing national courts to rule on whetherU.N. immunity applied would have a damaging effect on the independence ofU.N. experts. The experts might then be forced to ''hesitate to speak outagainst and to report violations of international human rights standards."

''(The) position of the U.N. is very firm and solid,'' replies van Boven.''The coming advisory opinion will have a great impact for the developmentof the international law."

The ICJ is expected to deliver its opinion between April and June nextyear.

(Inter Press Service)