You are here

Alleged Breach of UN Treaty Obligations by US

Press coverage and commentary following WikiLeaks cable dissemination (Part #1)


Introduction
Press coverage
Commentary
Exploration of legal possibilities

[Parts: Next | Last | All ] [Links: To-K | From-K | From-Kx ]


Introduction

As noted by Robert Booth and Julian Borger (US diplomats spied on UN leadership. The Guardian, 28 November 2010):

A classified directive which appears to blur the line between diplomacy and spying was issued to US diplomats under Hillary Clinton's name in July 2009, demanding forensic technical details about the communications systems used by top UN officials, including passwords and personal encryption keys used in private and commercial networks for official communications. It called for detailed biometric information "on key UN officials, to include undersecretaries, heads of specialised agencies and their chief advisers, top SYG [secretary general] aides, heads of peace operations and political field missions, including force commanders" as well as intelligence on Ban's "management and decision-making style and his influence on the secretariat".

A parallel intelligence directive sent to diplomats in the Democratic Republic of the Congo, Uganda, Rwanda and Burundi said biometric data included DNA, fingerprints and iris scans. Washington also wanted credit card numbers, email addresses, phone, fax and pager numbers and even frequent-flyer account numbers for UN figures and "biographic and biometric information on UN Security Council permanent representatives".

The UN has asserted that bugging the Secretary General is illegal, citing the 1946 Convention on Privileges and Immunities of the United Nations which states:

  • Section 3: The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.
  • Section 30: All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement.

The 1961 Vienna Convention on Diplomatic Relations, which covers the UN, also states:

  • Article 22.2: The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
  • Article 27.2: The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
  • Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
  • Article 30.2: His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.

It is noteworthy that the US withdrew in 1986 from compulsory jurisdiction by the International Court of Justice (after the court ruled that its covert war against Nicaragua was in violation of international law). The US now only accepts the court's jurisdiction on a case-by-case basis. It is therefore presumably free to reject any complaint made by the United Nations under the 1946 Convention. The 1961 convention makes no specific provision for the settlement of disputes.

Overview

The  US embassy cables indicated that Hillary Clinton as US Secretary of State, personally authorised a request to US diplomats, on behalf of the CIA, to steal personal human material and information from UN officials and human rights groups, including DNA, fingerprints, iris scans, credit card numbers, internet passwords and ID photos, in violation of international treaties. The revelations have prompted questions about whether such activity was legal, considering conventions that stipulate the UN's premises and correspondence "shall be inviolable".

On disclosure of the secret directive the UN secretary general's acting deputy spokesman, Farhan Haq, immediately issued a pointed statement reminding member states that the UN relies on their adherence to treaties and agreements about respecting the institution's inviolability: "The UN relies on the adherence by member states to these various undertakings." Furthermore, "The UN charter, the Headquarters Agreement and the 1946 convention contain provisions relating to the privileges and immunities of the organisation". The relevant clause of that convention reads:

    The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action.

Applicable treaties: More generally, the treaties governing the UN and its staff at the UN HQ in New York, are detailed by the U.S. Mission to the United Nations:

With respect to any infringement of human rights of individuals from whom information is sought in response to intelligence requests, of further relevance is the Presidential Executive Order 13107 Implementation of Human Rights Treaties (10 December 1998), signed by William Clinton. Of more general relevance are:

Questions are being raised by former UN staff, such as Stephen Schlesinger, author of a book about the organization (Act of Creation: the founding of The United Nations, 2003), who said today that the spying was not a surprise -- but what was, is the Obama administration's continuation of a policy begun by the Bush administration.

The fact that Hillary Clinton also signed off on these instructions, without modifying them, is startling to me. I would have thought a civil libertarian and liberal Democrat like Clinton (and Obama, too) would have stepped back after seeing these Bush rules and dropped them.

Official silence: Whilst there has been extensive media coverage of the alleged espionage by Julian Assange, very little has been heard of the case of espionage by the US at the UN in violation of its treaty obligations.

In a widely-circulated letter (4 December 2010) to Australian Prime Minister Julia Gillard, Peter Kemp, Solicitor of the Supreme Court of New South Wales (Australia), asks:

I join with Professor Saul [Don't cry over WikiLeaks, The Age, 2 December 2010] also in asking you Prime Minister why has there been no public complaint to the US about both Secretaries of State Condaleeza Rice and Hillary Clinton being in major breach of International law ie UN Covenants, by making orders to spy on UN personnel, including the Secretary General, to include theft of their credit card details and communication passwords. Perhaps the Attorney General should investigate this clear prima facie evidence of crime (likely against Australian diplomats as well), rather than he attempts to prosecute the messenger of those crimes.

There have been few other communications of this nature, most notably from any Member States of the United Nations according to any formal procedure as might otherwise have been expected. Consideration can also be given to the comments elicited from readers of many of the sources quoted below.


[Parts: Next | Last | All ] [Links: To-K | From-K | From-Kx ]