But is it possible to consider the Prosecutor an “expert on mission” for the UN? The text, travaux, ICJ jurisprudence, and UN practice suggest it is. The General Convention sets forth three categories of individuals who benefit from privileges and immunities: representatives of Members, officials, and experts on mission for the UN. The first two categories are relatively clear in scope and neither can apply to the Prosecutor. Nonetheless, Article VI, Section 22 liberally designates “experts” as persons “performing missions for the United Nations” who do not fall in the other two categories. “Experts” are entitled to such “privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions.” Although, as the ICJ has observed, the travaux reveal little about the motivation for the inclusion of this provision, the Legal Counsel suggested in his submissions before the Court (see here, para. 57) that this “wide category” was developed in light of difficulties faced by the League of Nations in obtaining privileges and immunities for members of ad hoc committees. The catchall provision was intended to “fill this gap.”
The Secretary-General has previously granted expert on mission status to rapporteurs, advisors, election observers, persons connected with peacekeeping, consultants, and certain participants in UN meetings (see here, Annex I). The ICJ has endorsed this broad application, noting that qualification for expert status “lies not in [individuals’] administrative position but in the nature of their mission.” Experts may be designated in various ways and need not necessarily be remunerated, contracted, or charged with tasks of any particular time-length.
Activities in furtherance of Security Council resolutions, such as monitoring sanctions regimes, as well as to members of human rights treaty bodies, which are not technically UN organs. In the case of members of the Committee on the Elimination of Racial Discrimination (CERD), expert status was granted because the CERD Convention advances UN Charter principles, CERD’s functions are similar to those of UN subsidiary organs, and because CERD meetings are held on UN premises (see here, p. 207, and commentary by Bandyopadhyay and Iwata). As one commentator summarizes, expert status is appropriate where “real and continuing” ties exist with the UN.
Notably, in advice published in the 2013 UN Juridical Yearbook, the Legal Counsel even employment database recommended that officials of the Special Court for Sierra Leone (SCSL), including its Prosecutor, be recognized as enjoying expert on mission status (see here, pp. 384-386). Despite the SCSL’s status as an independent body, this was considered possible under the General Convention in light of the “special relationship between the United Nations and the SCSL” and the fact that “the Security Council has supported the SCSL in a number of ways.” Expert status serves as a gap-filling protection for SCSL officials “when they are outside the countries in which they already enjoy privileges and immunities.” Given the strong relationship between the UN and the ICC, as well as the Security Council’s active interest in several ICC investigations, a similar logic could be applied here: the Secretary-General could grant the ICC Prosecutor expert on mission status wherever she does not otherwise enjoy privileges and immunities under the Rome Statute, such as within the United States.
In sum, the UN should make clear that it is not possible for the US to refuse the entry of the ICC Prosecutor to the UN in New York. The UN and the ICC are inextricably linked as a matter of law, as well as in their respective missions to uphold the UN Charter. As noted by then-Vice President Weeramantry in the Cumaraswamy case, investigators “cannot discharge their responsibilities with the independence essential to free and complete enquiry if they need to keep looking over their shoulder for adverse personal consequences that may ensue from an independent investigation.” As the ICC traverses a period of great strain, the UN should deploy the most robust legal response available, including by granting the Prosecutor expert on mission status.