A lot has been said about the tension between the accountability of international organizations and their immunity when the latter is invoked in proceedings against the organization or its officials. Less discussed is the case of an organization obstructing the course of justice by not waiving the immunity of its officials and experts summoned as witnesses by national authorities. In this blog, I will examine the possible arguments for not revoking this immunity in national procedures, and the legal consequences of this decision.
Immunity in the Italian proceedings
In November 2020, the WHO invoked the immunity of the experts of its “COVID-19 Emergency Team at the WHO European Office for Investment for Health and Development”, based in Venice, after the Public Prosecutor of Bergamo, Italy, had requested them to testify about a report they had authored on Italy’s first response to Covid-19. This choice drew the attention of Italian public opinion for three reasons. First, the investigation does not concern the responsibility of the WHO, but that of Italian authorities in addressing the first pandemic wave. Second, investigators did not summon WHO researchers as suspects, but as persone informate dei fatti, that is persons who could provide relevant information during the preliminary investigations, in particular on the adequacy of the Italian National Pandemic Influenza Preparedness and Response Plan (pandemic plan) and its application between January and April 2020. Finally, Francesco Zambon, who coordinated the team of WHO researchers, repeatedly asked the WHO to waive his immunity and allow him to testify on the matter. These circumstances, together with a series of documents made public by the press, led some commentators to voice the suspicion that the WHO may be covering the responsibilities of the Italian Government in the management of the crisis.
The Italian COVID response on trial
In the last months, several press sources suggested that Italian authorities may have lied on the date of the pandemic plan’s last update. According to the Guardian and the Italian TV program “Report”, the current pandemic plan was not “last updated on 15 December 2016” as the website of the Italian Ministry of Health states, but would be a mere copy-paste of the 2006 plan. Which may indicate that Italian authorities “failed to update the country’s pandemic plan in 2017, when the World Health Organization (WHO) and European Centre for Disease Prevention and Control (ECDC) established new guidelines”. The same press sources suggested that the WHO may have censored a report of the Venice Covid-19 Emergency Team which revealed that the Italian pandemic plan dates back to 2006 and described Italian first response to the epidemic as improvised and chaotic. The report was allegedly removed from WHO website the day after its publication. Although the WHO maintains that the document contained numerous inaccuracies, “Report” proved that it had been accepted for publication by the WHO (see the doc. at this link, bottom of the page), and showed emails in which Ranieri Guerra – current Assistant Director-General of the WHO – made pressures on the team coordinator, Francesco Zambon, to modify the date of the pandemic plan’s last update (see here, and here). The fact that between 2014 and 2017 Ranieri Guerra served as Director-General for Preventive Health at the Italian Ministry of Health also raises doubts about the existence of a conflict of interests between the organization and the Italian Government. According to some commentators, the inadequacy of the Italian Pandemic Plan may have increased the mortality rate during the first wave of the epidemic; an hypothesis that the Office of Bergamo’s Prosecutor aims to verify in its investigation, also by acquiring information from the experts of the Venice COVID-19 Emergency Team of the WHO.
This is, in short, the context in which WHO experts were summoned by Italian judicial authorities, and in which the organization invoked their immunity as international civil servants. Before summoning the authors of the report, however, the investigators requested to hear Ranieri Guerra, as a former official of the Italian Ministry of Health. Quite surprisingly, the WHO did not invoke Guerra’s immunity, and as a result Italian authorities interrogated him for several hours. The organization’s attitude changed when the summoning was notified to the researchers of the Venice Office. On 3 November 2020 the WHO sent a note verbale to the Permanent Mission of Italy in Geneva, affirming that the persons summoned enjoyed immunity under the Convention on the Privileges and Immunities of the Specialized Agencies. Meanwhile, as reported by press sources, the legal office of WHO’s regional office for Europe sent an email to the Venice researchers, instructing them not to attend the hearing and stating that “WHO is caught in the crossfire of numerous lawsuits and parliamentary enquiries because of its handling of the virus, and we must be careful not to set a precedent” (see the service broadcasted on Italian public TV; a transcription is available here, p. 2).
Article 19 CPISA
Article 19 of the Convention on the Privileges and Immunities of the Specialized Agencies (CPISA) provides that officials of the specialized agencies shall be “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity”. This immunity is generally regarded as covering the “summons for the appearance of officials as witnesses in judicial proceedings against third parties” (see here, pp. 408-409). Annex VII, art. 2, letter b) extends the same immunity to the experts performing a mission for the WHO. There seems to be no doubt concerning the status of the members of the Venice Team as either officials or experts on mission, depending on their individual situations. Similarly, it is not disputed that the content of the report falls within the scope of application of the immunity. As reported by press sources, the Italian Ministry of Foreign Affairs would have recognized that the members of the Venice Team cannot be compelled to appear as witnesses, thus not contesting the assertions made by the WHO on the applicability of the immunity.
The longstanding practice of international organizations to invoke the immunity of their officials (or experts on mission) when they are requested to appear as witnesses is normally viewed as reflecting “the privilege of non-disclosure of information acquired in the performance of official functions” (see The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary, p. 409). Concerning Bergamo’s investigation, it is difficult to see how the results of an independent research on a matter not directly related to the functioning of the WHO could imply the risk of disclosing confidential information, especially considering that WHO had initially made the report public. However, from the standpoint of the WHO, the possibility that investigators may ask questions concerning the internal functioning of the organization can never be completely excluded. This is not unproblematic considering that under Italian law the persona informata dei fatti cannot refuse to answer the questions of the investigators. In order to avoid potential risks and offer some form of collaboration to national authorities, besides invoking immunity, international organizations normally ask the investigators to submit their questions to the organization in writing. Also in the case at hand, the WHO said that it is ready “to consider technical questions provided in writing”; a language that seems to imply that the organization will provide its own official version of the facts, and not that of the individuals summoned. It is unclear how Bergamo’s investigators have responded to this proposal.
While acknowledging the applicability of the immunity, the Italian Ministry of Foreign Affairs – under pressure from public opinion – asked the WHO to waive it. The request was based on art. 22 of the CPISA, according to which “each specialized agency shall have the right and the duty to waive the immunity of any official in any case where, in its opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the specialized agency” (annex VII contains an identical provision regarding the immunity of experts on mission). This language has been interpreted in the sense that the organization shall weigh the need not to hinder the course of justice against the potential prejudices that a waiver could cause to the organization (see here, paras 107-109). In case the waiver can take place without prejudice for the organization, however, renouncing the immunity is a legal duty. Now, preventing a public prosecutor from hearing a witness in a case concerning the death of thousands of people arguably constitutes a serious obstacle to the regular course of justice. At the same time, it is not clear what prejudices a waiver of immunity could have caused to the WHO in the case at hand. Immunity of international organizations is generally justified by the need to preserve the autonomy of international institutions – i.e. to ensure that member States do not exert undue pressures on them to influence their decision-making – and the investigation of Bergamo Public Prosecutor does not seem to pose such a threat. As noted above, the investigation does not concern the responsibility of the WHO but that of Italian authorities. Moreover, the reasons provided in the email requesting Venice researchers not to attend the hearing – the only available document where the organization mentions the reasons to invoke immunity – seems to reflect a policy of mere caution vis-à-vis the possibility of unspecified future developments: “we must be careful not to set a precedent”. However, simple horror vacui – “one can never know what could happen if we waived immunity” – cannot guide the decision whether to waive immunity or not. If that was the case the legal duty to waive immunity would be emptied of its meaning, as one never knows the future.
Although the WHO did not waive the immunity of its officials and experts, at least one of them, Francesco Zambon, decided to appear before the investigators to answer their questions. Art. 22 CPISA provides that “privileges and immunities are granted to officials in the interests of the specialized agencies only and not for the personal benefit of the individuals themselves”. As a consequence, beneficiaries cannot renounce their immunity, as the authority to take such a decision lies exclusively in the hands of the executive head of the organization. Therefore, by deciding to testify before Italian authorities, Zambon did not waive his immunity; he simply disregarded the instructions of the WHO. However, hearing Zambon does not entail a breach of art. 19 CPISA: immunity from legal process implies that an official cannot be compelled to appear as a witness, but it cannot oblige investigating authorities to send him back or ignore his declarations if he appears spontaneously. Situations like this might admittedly entail the legal responsibility of the official towards the organization. One has nonetheless to understand the ethical dilemma faced by Zambon and the researchers of his team, caught between the loyalty (and legal obligations) towards and international institution and the moral duty to witness on a matter of public interest after their research – which, Zambon claims, might have saved lives – had been allegedly censored by the WHO.
In conclusion, it would seem that waiving immunity would have been the most beneficial course of action for the WHO. The choice of invoking immunity from legal process all but dispelled the suspicion that the WHO may be covering the responsibilities of the Italian Government. It rather confirmed the impression that the organization had something to hide. Some commentators wonder whether the WHO is covering the individual responsibilities of Ranieri Guerra for not having updated the pandemic plan when he was an high official of the Ministry of Health. Others wonder whether the fact that immunity was invoked only with regard to the Venice team, and not to Ranieri Guerra, reveals the intention of the organization to provide the investigators only with the version of the facts offered by the latter. To be sure, there could be various reasons for such a difference of treatment, as Ranieri Guerra could have omitted to inform the WHO that he had been summoned, or the WHO might have determined that the summoning fell outside the scope of application of the immunity because it concerned acts performed when Ranieri Guerra was not an official of the organization. Be that as it may, only a policy of transparency can restore public confidence in the WHO; waiving immunity, allowing Venice researchers to testify would have sent a strong signal in this sense.