Does Immunity Mean Impunity?: Understanding Obstacles in the Prosecution of U.N. Corruption

Corruption has yet again publicly surfaced as a significant problem at the United Nations. The current bribery scandal implicates John Ashe, the U.N. ambassador from Antigua and Barbuda and the former President of the General Assembly, along with several others. Ashe stands accused of accepting $1.3 million in bribes from Chinese developers in exchange for promoting real estate projects. Among the others who have come under scrutiny is Francis Lorenzo, the Dominican Republic’s deputy ambassador to the U.N., who allegedly accepted and paid bribes as a part of a scheme to influence decisions related to the development of a multi-billion dollar U.N. conference center in Macau.

As both Sarah and Matthew have previously discussed, the U.N. has not done an admirable job of policing itself. But now the organization may be getting help from the U.S. Attorney’s Office for the Southern District of New York. In October 2015, the FBI arrested Ashe and Lorenzo on charges of tax evasion and bribery, respectively. But the prosecution of officials of an international organization poses uncommon challenges. U.N. diplomats can claim certain immunity against suit in American courts, and both Ashe and Lorenzo plan to assert such immunity as a complete defense. U.S. Attorney Preet Bharara feels confident that he will be able to defeat these immunity claims, and he has further implied that he will be able to do so in future cases.

Is Bharara’s confidence well-founded? Any assessment of how American prosecutors (or other national prosecutions) may fight corruption at the U.N. requires delving into the complex legal doctrines on diplomatic immunities. This post aims to offer a brief primer on the key legal concepts and doctrines, and how they might apply in the Ashe and Lorenzo cases.

U.N. ambassadors, officials, and personnel enjoy varying degrees of immunity depending on their positions. Broadly speaking, these protections fall into two categories: (1) status-based immunities, which apply to public officials by virtue of the positions they hold, and (2) conduct-based immunities. Both Ashe and Lorenzo will lay claim to diplomatic immunity – a powerful, status-based defense – and official acts immunity – a conduct-based defense. In order to reach the merits and bring the men to justice, Bharara must be prepared to overcome each hurdle. I will discuss them in turn.

Diplomatic immunity is a status-based immunity recognized in customary international law, treaty, statute, and common law. Diplomatic immunity is robust, shielding the possessor from both criminal and civil liability. But diplomatic immunity typically only attaches to a government’s highest-level representatives, and only applies for the duration of the official’s term. In order to pierce the immunity, adverse litigants require a waiver of the protection, and this waiver (with very limited exceptions) must be issued by the granting nation. At the advice of the prosecution, the U.S. State Department may request a waiver from the diplomat’s home country. Although the State Department typically heeds such prosecutorial advice in clear-cut situations, it is generally protective of immunities for policy reasons.

As an ambassador, Ashe has a better claim to diplomatic immunity than Lorenzo and, indeed, prosecutors are still devising the proper strategy in his case. With respect to Lorenzo, the prosecution recently achieved a necessary victory when the presiding judge declared that he could not assert diplomatic immunity, primarily because, although Lorenzo is a diplomat for the Dominican Republic, he is also a naturalized U.S. citizen. Immigrants in his position are required to waive their immunities when they become green card holders. Obviously, the facts in this case are highly particularized. But the waiver condition also applies to Lawful Permanent Residents, a status that may encompass a significant number of U.N. employees (including Ashe).

If a foreign official cannot claim diplomatic immunity, he may invoke official acts immunity. This immunity covers only acts performed by the official in his or her official capacity, but can be claimed by government representatives at any time, even after leaving office. The legal basis for official acts immunity is dicier than the foundation for diplomatic immunity, and there is little doctrine on its scope (at least in the U.S.) because U.S. courts typically defer to State Department determinations. Generally, the term “official acts” appears to be quite expansive. Prosecutors can overcome this immunity defense either by seeking a waiver (generally even more difficult than getting a waiver of diplomatic immunity) or showing that the defendant was not acting in his or her official capacity.

The official acts immunity doctrine may pose a bigger challenge to U.S. prosecutors in the Ashe and Lorenzo cases. The judge who rejected Lorenzo’s diplomatic immunity claim explicitly stated that this ruling would not preclude Lorenzo from asserting immunity for official acts he performed in connection with his diplomatic duties. Thus, the prosecution’s theory of the case depends on showing that Lorenzo was not serving in his official capacity when he solicited and paid bribes.The prosecution has a plausible argument here: Because Lorenzo was (allegedly) acting for his own private gain, contrary to the interests of his national mission and the U.N., he was arguably acting in an inherently personal capacity; he was, in effect, an agent who breached a fiduciary duty to his principal. But it’s not clear whether a court will accept that theory, and the prosecution’s argument is complicated by the fact that the statute under which Lorenzo has been charged, 18 U.S.C. 666, requires, in part, that the offender be “an agent” of a government or organization. The prosecutor in cases like this is therefore legally caught between a rock and a hard place: the prosecution must show, for purposes of defeating the “official acts” immunity defense, that the defendant was not acting in an official capacity, but, for purposes of satisfying the statute, that the defendant was acting as an agent of his or her government. This is potentially problematic, though not necessarily fatal: The statute defines an agent as a person “authorized to act on behalf of another person or a government” (emphasis added), while the official acts immunity defense requires that the defendant was acting on behalf of his or her principal. So, presumably the prosecutors will argue that Lorenzo was authorized to act on behalf of the U.N. (thus satisfying that element of 18 U.S.C. 666), but that when he took and paid bribes, he was acting only on behalf of himself (thus defeating the official acts immunity defense).

Until now, the anticorruption community has had little need to grapple with the intricacies of the legal immunity doctrines that apply to diplomats and other employees of international organizations. But if the U.S., and other national law enforcement agencies, are serious about taking on corruption in the U.N., these questions will become increasingly important. The Ashe and Lorenzo cases are thus important, as the further explication of these immunity doctrines could have significant consequences for efforts to combat U.N. corruption.

7 thoughts on “Does Immunity Mean Impunity?: Understanding Obstacles in the Prosecution of U.N. Corruption

  1. Thanks for a very clear and helpful post! You have posed some very interesting questions. Two thoughts:

    First, beyond the legal bases and maneuvering possibilities, how do corruption charges and the policy purposes of diplomatic immunity interact? Would upholding or dismantling diplomatic immunity in corruption cases better achieve the purposes of the immunity? Do corruption charges have a different relationship to immunity than would other types of misconduct?

    Second, I wonder about the “authorized to act” versus “acting” distinction you draw in a quid pro quo scenario. I certainly see how accepting a bribe could be construed as acting in one’s own self-interest rather than in an official capacity, but in performing a favor in exchange, wouldn’t the corrupt actor be acting in his or her official capacity once again? Would this be a problem for the prosecution?

  2. This isn’t an area of law I know well. (And by “well” I mean “at all.”) But with that caveat, I’m not sure that the possible tension you posit in your second-to-last paragraph is really so hard to resolve. As you point out, it’s entirely possible for an individual defendant to be an agent of a government (or the UN), but to do things that don’t count as “official acts.” That’s a kind of distinction we make all the time in other areas of law. (For example, when asking whether an employee is liable for the conduct of an alleged employee, we inquire both whether the individual who caused harm was actually an employee, and also whether she was acting in the course of her duties.)

    It would seem to me that the harder problem is the second question that Rathna raises above: Can the government argue that the acceptance of the bribe is by definition not an “official act” (because not sanctioned by, or in the interests of, the UN or the home government)? Or would the official acts immunity doctrine always apply because the thing that the bribers were “buying” were official decisions? The interesting thing about that legal question is that it seems to imply an all-or-nothing answer to the question whether the official acts immunity doctrine can defeat a charge against a foreign diplomat under 18 USC 666: If the bribery renders the acts not “official,” then the official acts immunity defense will never be available in these cases (by definition), but if the acts themselves, by virtue of their official nature, means that the immunity defense applies, then again (by definition) it will never be possible to maintain an 18 USC 666 charge against a foreign diplomat, at least if the conduct alleged is that the official took a bribe in exchange for a particular exercise of his/her official powers. Am I wrong about that?

    • I think a potential answer to this can be found in the US’s Speech or Debate Clause jurisprudence. The US Constitution protects Senators and Congresspeople from prosecution for the “legislative acts” they take. In the seminal case United States v. Brewster, the Supreme Court held that politicians could be prosecuted for agreeing to or accepting a bribe for a legislative act. The court drew a distinction between the vote (aka legislative act) itself, which is protected, and the act of taking a bribe, which is not. The court said that prosecution for bribery did NOT require actually looking into whether the Congressperson took the promised vote or held the promised investigation. Because proving the acceptance of a bribe was enough, the former Senator was not protected by the Speech or Debate clause. However, discussions of how the Senator actually voted were not allowed.

      Interestingly, I think this outcome doesn’t apply an all-or-nothing approach per se. While prosecution for bribery is allowed, proof about whether someone took the legislative act, which I imagine many prosecutors would like to introduce, is not. While the statutes at issue are different (Brewster involved 18 U.S.C. § 201), I think there’s a clear analogy to make.

      Here’s a link to the Brewster case for those interested: https://www.law.cornell.edu/supremecourt/text/408/501

  3. Pingback: Does Immunity Mean Impunity?: Understanding Obstacles in the Prosecution of U.N. Corruption | Anti Corruption Digest

  4. Thanks for breaking this all down in such a useful way! Immunity issues always seem daunting. On the diplomatic immunity issue, my understanding is that international organizations are subject to a somewhat different standard than under the Vienna Convention as implemented in 22 U.S.C. §254. I think the relevant statute is the International Organizations Immunities Act, 22 U.S.C. § 288 [https://www.law.cornell.edu/uscode/text/22/288d]. (I’m taking that from the Department of State’s Diplomatic and Consular Immunity Guidance.) In addition to the various breakdowns of differing levels of immunity for the different levels of staff in under those two systems, I wonder if there is a difference when it comes to official acts immunity between the Vienna Convention’s reference to “acts performed in the course of their duties” and § 288’s “performed by them in their official capacity and falling within their functions.” The latter seems, at least arguably, somewhat narrower in scope.

    On Matthew’s point and Rathna’s question about the interplay between agency and official acts that are self-serving but in some sense using the office, it certainly seems like if there isn’t a way to separate things like bribes from outside the category of immune official acts, there ought to be. While it’s a separate area of law, I was recently reading about the adverse-interest exception for corporate officers’ acts in securities law, which might offer an analogue. In those cases, corporate leaders’ acts, as agents, would normally be imputed to the corporation for liability purposes. However, when the officer acts for their own interests and against the interests of the corporation, their acts are not imputed to the corporation. While it has been interpreted quite narrowly, it does offer some approach to countering the necessity of agency with a carve-out for completely self-serving conduct.

  5. The comments above have already covered some important ground, so I’ll leave those issues there. I’m still interested in finding out more about state responses to State Department waiver requests, though. I understand why there would be lot of debate within the State Department about whether to issue a request, but–and forgive me if you answered this before–how often do states respond positively to the request?

    As others have said, thanks for breaking down what could be an important issue, not just in this case but for broader anticorruption efforts, in such a clear way.

  6. Thanks for this post — super helpful to understanding how immunity works. I know there have been a lot of immunity issues with sexual corruption by UN peacekeepers. I’m curious how that would fit in here — rape would not typically be an official act (though it can be when used as a war crime) and the soldiers are not typically high level so they would not under this analysis seem to receive diplomatic immunity. This is not an area of law that I know well either; perhaps there are greater legal protections for soldiers, since they are sent into high-risk situations where many missteps could lead to legal claims, than are offered to other diplomatic personnel?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s