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.