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during the second period of its seventh session. For the time being, the Panel has the function of advising the Secretary-General on cases referred to it by him.
(9) Relevant provisions of United States law
73. Some delegations have informally indicated that they would like to receive, as background for their consideration of the measures taken by the Secretary-General, a summary of relevant provisions of the law of the United States relating to subversive activities. Accordingly, the Legal Department has prepared, for this purpose annex VI1 which includes material relating to the Smith Act of 1940,2 to the Internal Security Act of 1950,3 and to the laws and regulations concerning loyalty standards and procedures for employees of the United States Government.4
B. POLICY REGARDING EMPLOYEES WHO CLAIM THE PRIVILEGE AGAINST SELF-INCRIMINATION IN OFFICIAL INQUIRIES
74. The problem raised by staff members who refuse to testify on the ground of the privilege against self-incrimination referred to in paragraphs 55, 56 and 65 above, must be evaluated in the light of the legal effect and significance of the privilege. For this reason a brief summary of the meaning and application of the privilege precedes discussion of the policy adopted in dealing with United Nations officials who claim it.
(1) Status of the privilege against self-incrimination in United States constitutional law
75. The so-called privilege against self-incrimination, as a rule of evidence and criminal procedure, has been recognized and applied by the English and American courts since the middle of the seventeenth century as a protection against tyrannical prosecution. The incorporation of the privilege into the federal Constitution of the United States and into the constitutions of most states did not change the pre-existing law although it has lent additional sanctity to the privilege. The privilege is found in the Fifth Amendment, one of the ten amendments to the Constitution (the so-called Bill of Rights) which were adopted in 1791 to restrict the manner in which the powers entrusted to the federal government may be exercised. The pertinent language of the Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself".
76. Strictly speaking the Fifth Amendment merely limits the power of the Federal Government of the United States and does not grant a right to the individual. It protects the individual only in federal proceedings and only against testimonial compulsion by federal authori
1 Not reprinted here.
254 Stat. 670.
3 59 Stat. 669.
Principally, Ex. Or. No. 9835 (12 Fed. Reg. 1935) and Ex. Or. No. 10241 (16 Fed. Reg. 3690).
ties. Yet it also embodies a general principle of justice which all states of the United States have made part of their own laws in different degrees.
77. Literally interpreted, the self-incrimination clause of the Fifth Amendment provides only that a defendant in a criminal case may not be compelled to testify. The privilege, however, can also be asserted by witnesses who are not defendants. Moreover, it is not limited to judicial proceedings but applies to any proceeding in which testimony may be compelled. It applies to administrative proceedings and to investigations such as those by grand juries or legislative committees. The policy behind the grant of the privilege in such proceedings is, of course, the realization that testimony obtained from a mere witness may later be used to prosecute him criminally.
78. The privilege is not available to protect the witness against the disclosure of facts which are merely damaging to his reputation or subject him merely to civil liabilities. Only fear that he may furnish. evidence tending to convict him of crime entitles him to refuse to answer. In federal proceedings the crime itself must be a federal crime; if it is merely a state crime, it is generally considered that the privilege does not apply. Further, the privilege is personal to the witness and it cannot be invoked merely to protect his associates from criminal liability. Moreover, the crime must be one for which a prosecution could still be had. If the witness is given legally binding immunity, or if the statute of limitations bars prosecution, the privilege is lost.
79. On the other hand, the privilege protects not only against the disclosure of complete crimes but of separate elements of crimes, and even clues which might lead to the discovery of crime are protected. The witness, however, is not permitted to refuse to answer capriciously; for the privilege to apply, his refusal must appear to be reasonable in the light of all the circumstances.
(2) Employment disabilities in the United States as a consequence of invoking the privilege
80. As indicated, the purpose of the privilege against self-incrimination is to provide protection against criminal prosecutions. It regulates the conduct of judge and prosecutor at criminal trials and, under federal law and the law of some states, the jury is forbidden to draw unfavourable inferences from the refusal of the defendant to testify. In so far as the privilege applies in other proceedings, it merely permits witnesses to refuse answers which might later be used to prosecute them. Thus, it is clear that the prevention of criminal prosecution based on evidence which the defendant himself furnished when compelled to do so by an oath to testify is the only underlying policy of the privilege.
81. However, the fact that a person could not be convicted of a crime does not imply that that person must necessarily be fit for either public or private employment. The immunity from prosecution is solely a negative quality. Employers have a right to insist on more exacting standards of the probity and fitness of their employees.
82. It is now established as a matter of United States constitutional law binding on the states, that public employment cannot be refused to anyone on grounds that are arbitrary or improper. In the light of this principle, it is significant that a public official who invokes the privilege against self-incrimination in a matter concerning his official duties be dismissed for that reason. may If testifying would result in immunity for any crime to which the testimony relates, a public official must waive that immunity or forfeit his position. Two of the states (New York and Louisiana) have express statutes to this effect. In other states this result has been reached on common law grounds.
83. Courts in the United States which have been confronted with such questions assign two reasons for their conclusions:
(a) The refusal to testify leads to the natural inference that the refusal is motivated by actual guilt and bad conscience.
(b) Such a refusal to testify is not consistent with the positive duty of government officials to aid in the elimination of crime and the apprehension and conviction of criminals.
84. On either score, the official invoking the privilege is considered to have shown his unfitness for public office. Even a private employment contract which requires an employee to preserve his reputation free from scandal is breached if the employee invokes the privilege, and he may be dismissed.
85. These rulings are consistent with the policy of the privilege to protect only against criminal penalties and not against civil disadvantages. The official against whom these rules are invoked is not in any way deprived of the privilege; its protection, however, does not extend beyond the unavailability of his testimony for criminal prosecutions.
(3) The effect of a claim of privilege on the status of a United Nations staff member
86. It remains to outline the action to be taken by the United Nations in case one of its employees invokes the privilege in the course of an official inquiry by a Member nation. As indicated above, the problem has arisen in the United States, the seat of the Secretariat, but it may arise also in other countries which accord the privilege.
87. There may be cases where the United Nations should ignore the matter if the claim of privilege is made in a context which has no bearing on the functioning of the Organization or on the fitness of the employee to be an international civil servant. On the other hand, it is certainly of concern to the United Nations when an employee pleads his privilege in an inquiry concerning activities which are inconsistent with the status of international civil servants and with their fundamental obligations under the Charter and the Staff Regulations. Such activities include, among others, those involving espionage, sabotage, or incitement to violent overthrow of governments of Member nations.
88. Admittedly, the claim of privilege does not warrant an inference of guilt strong enough to suffice for criminal conviction. But the mere absence of evidence warranting a finding of guilt is hardly a
sufficient guarantee of fitness for a position of trust as an international civil servant. A claim that an answer might tend to incriminate must be based under the law on a bona fide apprehension that a criminal prosecution might ensue. The fact that there is such apprehension gives rise in actual practice to an unfavourable inference. This inference cannot be dismissed as unreasonable, since the witness himself is asserting that he has in good faith a fear that his answer might tend to establish his guilt. Although he cannot be asked to identify the nature of the crime, this is reasonably indicated by the purpose of the inquiry and the particular circumstances of the interrogation.
89. Thus, in the cases of the United Nations staff members who refused to answer questions before the Senate Sub-Committee it was apparent that the possible area of guilt related to crimes involving subversive activities. The use of the privilege in that context naturally gave rise to the belief that there was reasonable ground for the witness to fear that he might be convicted of a crime involving the security of the United States.
90. It cannot be doubted that a situation of this kind impairs the relationship of mutual confidence and trust which must exist between the international official and the governments of Member States. Especially in a time of serious political tension and concern over national security, the United Nations staff member has a positive obligation to refrain from conduct which will draw upon himself grave suspicion of being a danger to the security of a particular State. When he has refused to answer official interrogations relating to crimes involving subversive activities, he has by his own free choice violated that obligation; he has thereby contributed substantially to undermining the confidence which the international official is required to maintain.
91. For these reasons, the Secretary-General has followed the recommendation of the Commission of Jurists that in the future staff members should be dismissed for violation of their fundamental obligations, particularly under article 1.4 of the Staff Regulations, when they have used the privilege against self-incrimination in official inquiries concerned with subversive activities and espionage.
C. POLICY IN CASES OF ACCUSATION OR SUSPICION
92. It remains to examine the difficult question of cases of accusations or suspicion of subversive activities on the part of United Nations staff members.
93. As has already been stated, confidential information has during the last years been transmitted to the Secretary-General by several governments. Moreover, accusations have been made and suspicions have been voiced in the United States in the course of investigations by national official bodies and in the public press. The following portion of the present report will examine the fundamental considerations which should govern the handling of these accusations, the substantive and evidential standards which should be applied, and the procedures which should be followed.
(1) General considerations
94. The Secretary-General's authority to dismiss staff members cannot be exercised arbitrarily. Such decisions must not only remain within the limit of his powers as defined by the Charter and the Staff Regulations, but must comply with the elementary requirements of justice. For the Secretary-General to dismiss a staff member on the basis of the mere suspicion of a government of a Member State or a bare conclusion arrived at by that government on evidence which is denied the Secretary-General would amount to receiving instructions in violation of his obligation under Article 100, paragraph 1 of the Charter not to receive, in the performance of his duties, instructions from any government. Further, his dismissal of a permanent official without adequate evidence would be a denial of that reasonable security of tenure which has repeatedly been recognized as indispensable to the creation of an efficient and devoted international civil service.
95. Finally, dismissal on a ground relating to subversive activities is a very serious matter for the staff member concerned. It not only deprives him of a respected position with the United Nations, but may also gravely impair his prospects of employment elsewhere and subject him to public condemnation in his own country. An action which so vitally affects the life of an individual should only be taken after due process and on the basis of convincing evidence.
96. These considerations, however, should not obscure the fundamental fact that an international civil servant occupies a special position of trust and confidence. He has not only an affirmative duty of loyalty to the policies established by the responsible organs of the United Nations but he has, over and above this, the obligation to conduct himself so that he can rightfully command the trust and confidence of the governments of Member States. There can, therefore, be no question that staff members must refrain from any activity aimed at subverting or overthrowing any Member government; they must indeed refrain from any conduct which might justly draw upon them grave suspicion of being a danger to the security of a particular State. In accordance with these considerations the following standards of substance and evidence should be applied.
97. The Secretary-General should not retain a staff member in the employment of the United Nations if he has reasonable ground for believing that that staff member is engaging or is likely to engage in subversive activities against the government of any Member State. The expression "subversive activities" is used, not with any special technical meaning, but in its ordinary sense, which denotes activities directed toward the overthrow of a government by force, including conspiracy toward such overthrow and incitement and advocacy of it.
98. It should be required that there be reasonable ground for believing accusations of this type against staff members. This means that charges must be supported by a preponderance of the evidence.