Germany weighs in on immunity of German-Tunisian UN arms expert

Published: 23 July 2020 Authors: Mirjam Reiter and Stefan Talmon

Dr. Moncef Kartas, a Tunisian-German dual national, had been a member and arms expert of the United Nations Panel of Experts on Libya since May 2016. The Panel had been established pursuant to Security Council resolution 1973 (2011) to investigate allegations of violations of the arms embargo and other sanctions imposed on Libya. On 26 March 2019, shortly before the Panel was to submit an interim report to the Security Council, Dr. Kartas was arrested on espionage charges upon arrival in Tunis. He was accused of gathering intelligence information concerning national security through interference, interception and audio surveillance and disclosing that information to foreign governments. It was argued, in particular, that he possessed special radio devices used to track civil and military aviation, the use of which required official authorisation in Tunisia.

Experts on mission for the United Nations generally enjoy immunity from personal arrest. The Tunisian authorities, however, denied Dr. Kartas immunity on the grounds that he had entered Tunisia in a private capacity on his Tunisian passport, and not on his United Nations laissez-passer; that he was involved with a UN mission in Libya and not in Tunisia; and that the criminal charges did not come within the framework of his work for the United Nations.

On 11 April 2019, Dr. Kartas was formally charged with espionage and treason and an investigative judge decided to continue his detention. The next day, the spokesperson for the UN Secretary-General stated during the UN’s daily press briefing:

“The continued detention is in violation of the privileges and immunities that Mr. Kartas enjoys, which are held in the interests of the United Nations. Mr. Kartas is an expert on mission for the UN and enjoys specific privileges and immunities under Article VI, Section 22 of the Convention on the Privileges and Immunities of the UN. The procedure for addressing his immunity is clearly spelled out in the Convention. […]

We are very concerned that, to date, the Government has failed to provide an adequate response in line with the international legal obligations under the Convention. A United Nations official has visited Mr. Kartas in detention to ascertain his health and well-being and will seek to do so periodically.  […] we have engaged with the Government at the highest levels and will continue to urgently seek constructive engagement by the Government of Tunisia on this very serious matter.”

Germany was involved in the case in a twofold capacity. First, the country was chair of the UN Security Council’s Libya Sanctions Committee, which was established under resolution 1970 (2011) and was responsible for the Panel of Experts. Secondly, Dr. Kartas was also a German national. As chair of the Sanctions Committee, Germany’s Deputy Permanent Representative at the United Nations – accompanied by the UN Secretariat – met with the Chargé d’affaires a.i. of the Permanent Mission of Tunisia to the United Nations on 18 April 2019 in order to ascertain the reasons for Dr. Kartas’ arrest and detention as well as the conditions under which he was being held. As State of nationality, Germany requested consular access to Dr. Kartas. Several verbal notes were sent to the Tunisian Government and talks were held with the Tunisian ambassador in Berlin. However, consular access proved difficult because of Dr. Kartas’ dual Tunisian-German nationality. There is no right of access by one State of nationality against the other State of nationality. As a matter of goodwill, access was finally granted on 7 May 2019.

Following a careful review of the documents on Dr. Kartas’ case provided by the Tunisian authorities, the UN Secretariat formally notified the Government of Tunisia that it reaffirmed the immunities he enjoyed in relation to the legal proceedings in Tunisia and requested his immediate release and for the charges against him to be dropped. Germany supported the UN Secretariat’s call for Dr. Kartas’ immediate release. On 10 May 2019, the Director for Near and Middle East and North Africa at the Federal Foreign Office tweeted:

“Dr. Moncef Kartas is protected by functional immunity as member of the UN Panel of Experts on Libya. The United Nations have confirmed this repeatedly and called for his immediate release from detention in Tunisia. The German Foreign Office shares this position.”

This was followed on 16 May 2019 by several tweets by the Legal Adviser, Director General for Legal Affairs, at the Federal Foreign Office, who stated:

“We join the UN in calling for the immediate release of the German-Tunisian national Dr Moncef Kartas from detention in Tunisia. Dr. Kartas is protected by functional immunity as member of the UN Panel of Experts on Libya.

At the time of his detention on 26 March Dr. Kartas was performing his official mission and thus enjoys immunity under the UN Convention on the Privileges and Immunities (1946).

Only the UN Secretary-General has the right to waive the immunity for experts such as Dr. Kartas. The United Nations have confirmed this repeatedly, [the German Federal Foreign Office] shares this view.”

On 21 May 2019, the Court of Appeals in Tunis ordered the release on bail of Dr. Kartas. While welcoming his release, Germany’s Permanent Representative at the United Nations stated in the Security Council:

“The arrest and detention of Mr. Kartas is a very serious concern for us, since he enjoys immunity from arrest and detention in his capacity as a United Nations expert on mission. The immunity of United Nations staff and experts is an important element of our multilateral system. It must be protected and upheld.”

The Permanent Mission of Germany in New York also issued the following statement:

“Germany is very relieved that Dr. Moncef Kartas, a German-Tunisian national and member of the Panel of Experts on the 1970 committee specializing in arms embargos, was released from prison in Tunisia today. We had intensively worked with the United Nations to this end. The immunity of UN employees and experts is fundamental for the functioning of the multilateral order and must be respected by everyone.”

Dr. Kartas was only released on bail, though. The case against him was not terminated, as had been requested by the UN Secretariat. His belongings, including a phone, laptop and documents, had also not been returned. The case continued to occupy and affect the work of the Libya Sanctions Committee. On 18 November 2019, the German representative was unable to brief the Security Council in his position as chair of the Committee because the members of the Committee could not reach consensus on his statement, specifically with regard to a proposed reference to the case of Dr. Kartas. Speaking in his national capacity, the German representative stated:

“Let me say that we understand and respect that this is a judicial matter in Tunisia but, at the same time, it is a matter of the Libya Sanctions Committee and of the Council. For that reason, I would like to reiterate that Tunisia must abide by its obligations under the 1946 Convention on the Privileges and Immunities of the United Nations and close all legal proceedings or request authorization to continue them in line with the Convention.”

Despite the UN Secretariat and Germany closely following the case, the proceedings against Dr. Kartas were not terminated. In February 2020, he left the Panel of Experts, declining to renew his mandate. To what extent the detention and criminal proceedings against Dr. Kartas put a strain on German-Tunisian relations is a matter of speculation.  It is, however, noteworthy that Tunisia, unlike Algeria and Egypt, was not invited to the Berlin Conference on Libya in January 2020.

By arresting and detaining Dr. Kartas for almost two months, Tunisia violated its obligations under the Convention on the Privileges and Immunities of the United Nations. According to Article VI, Section 22 of the Convention:

“Experts […] performing missions for the United Nations shall be accorded 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. In particular they shall be accorded:

(a) Immunity from personal arrest or detention and from seizure of their personal baggage”.

Privileges and immunities are granted to experts not for their personal benefit but in the interests of the United Nations. Immunity persists unless waived by the UN Secretary General. In the present case, the UN Secretariat expressly reaffirmed the immunities enjoyed by Dr. Kartas and requested his immediate release. As a member of the UN Panel of Experts on Libya, which was preparing an interim report for the Security Council’s Libya Sanctions Committee, Dr. Kartas qualified as an “expert on mission” enjoying immunity from arrest and detention. The fact that his work was related to Libya and not Tunisia is irrelevant. Similarly, that he was travelling on his Tunisian passport does not deprive him of immunity under the Convention. The International Court of Justice confirmed that experts on missions for the United Nations can invoke the privileges and immunities under Article VI, Section 22 of the Convention “against the States of which they are nationals or on the territory of which they reside”. The Court held:

“The privileges and immunities of Articles V and VI are conferred with a view to ensuring the independence of international officials and experts in the interests of the Organization.

This independence must be respected by all States including the State of nationality and the State of residence.”

While some Member States had entered reservations to certain provisions of Article VI as regards their nationals, Tunisia had made no such reservations when it acceded to the Convention on 7 May 1957. In the absence of such reservations, experts on missions enjoy the privileges and immunities provided for under the Convention in their relations with the States of which they are nationals or on the territory of which they reside.

Privileges and immunities under the Convention are granted to experts “in the interests of the United Nations and not for the personal benefit of the individuals themselves.” As the injured international organisation, the United Nations, represented by its Secretariat, was thus competent to invoke Tunisia’s responsibility and specify the conduct that Tunisia should take in order to cease the wrongful act; that is, to request the immediate release of Dr. Kartas. It is not immediately clear, however, what entitled Germany, acting in its national capacity, to call for Dr. Kartas’ release. Tunisia had not violated any international obligation directly owed to Germany. While Germany was a party to the Convention on the Privileges and Immunities of the United Nations, the legal obligations under the Convention are “between the United Nations and every Member” of the Organisation. As immunities are granted not for the personal benefit of the individual UN expert, Tunisia also did not breach any international obligation owed to Dr. Kartas which would have entitled Germany, as the State of predominant nationality, to invoke Tunisia’s responsibility by way of diplomatic protection.

Germany stated that “the immunity of UN employees and experts is fundamental for the functioning of the multilateral order and must be respected by everyone”. The privileges and immunities of the United Nations find their basis in Article 105(1) and (2) of the UN Charter and the details of the application of these paragraphs have been set out by the UN General Assembly in the Convention on the Privileges and Immunities of the United Nations. The privileges and immunities laid down in the Convention are to ensure that the Organisation can fulfil its purposes and that its officials and experts can independently exercise their functions in connection with the Organisation. As UN Secretary-General Kofi Annan once said, the “United Nations is the member States.” All members of the Organisation have a common legal interest in compliance with obligations under Article 105 of the UN Charter and the Convention. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Charter and the Convention; that is, that they are “obligations erga omnes partes”. The common interest in compliance with the relevant obligations implies the entitlement of each UN member State to make a claim concerning the cessation of an alleged breach by another member State. This allowed Germany to call upon Tunisia to release Dr. Kartas immediately.

Category: United Nations

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Authors

  • Mirjam Reiter studies law at the University of Bonn. She also studied at the University of Zurich and successfully participated in the 27. Willem C. Vis International Commercial Arbitration Moot Court.

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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