Identifier
Created
Classification
Origin
09UNVIEVIENNA49
2009-02-05 12:02:00
UNCLASSIFIED
UNVIE
Cable title:  

SECOND UNCAC WORKSHOP ON BRIBERY IN INTERNATIONAL

Tags:  PGOV UN KCRM UNODC 
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VZCZCXYZ0007
RR RUEHWEB

DE RUEHUNV #0049/01 0361202
ZNR UUUUU ZZH CCY CAPTION (ADX28D7E8 MSI2114) 431
R 051202Z FEB 09 ZEL
FM USMISSION UNVIE VIENNA
TO RUEHC/SECSTATE WASHDC 8978
INFO RUCNDT/USMISSION USUN NEW YORK 1470
UNCLAS UNVIE VIENNA 000049 

C O R R E C T E D C O P Y (CAPTION)

SIPDIS

E.O. 12958: N/A
TAGS: PGOV UN KCRM UNODC

SUBJECT: SECOND UNCAC WORKSHOP ON BRIBERY IN INTERNATIONAL
ORGANIZATIONS

---------
SUMMARY
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UNCLAS UNVIE VIENNA 000049

C O R R E C T E D C O P Y (CAPTION)

SIPDIS

E.O. 12958: N/A
TAGS: PGOV UN KCRM UNODC

SUBJECT: SECOND UNCAC WORKSHOP ON BRIBERY IN INTERNATIONAL
ORGANIZATIONS

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SUMMARY
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1. On January 28-29, 2009, the UN Office on Drugs and Crime (UNODC)
hosted the second open-ended experts workshop on International
Cooperation between Public International Organizations and States
Parties to the UN Convention Against Corruption (UNCAC). Workshop
participants discussed ways to improve cooperation between
government authorities and international organizations (IO's) in
addressing bribery and other corruption cases involving IO
officials. Delegates from 40 countries and 20 IO's ultimately
adopted recommendations based largely on conclusions drafted by the
U.S. delegation. These include a call for written guidelines for
cooperation, regular meetings between the organizations and
appropriate law enforcement authorities to ensure proper
communication, and early notification to those authorities of
credible allegations of corruption.

2 SUMMARY CONTINUED: UNODC hosted a second meeting during the
afternoon of January 29 of the members of the UN Chief Executive
Board (CEB) representing most of the international organizations in
the UN system. Member State experts were allowed to observe. At
this meeting, IO representatives discussed progress in implementing
UNODC's Integrity Initiative, a voluntary effort by the IO's to
integrate UNCAC principles into operational practices. UNODC
discussed efforts to collect information on the work being done by
IO's involved and post them on a website accessible by other IO's.
With only two thirds of the organizations reporting, progress has
been slow, and UNODC urged participants to show more progress when
the issue is revisited during the Third UNCAC Conference of States
Parties (COSP),currently scheduled for November in Doha. END
SUMMARY

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BACKGROUND: GETTING TOGETHER MEMBER STATES AND IOs
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3. The current workshop resulted from the 2003 UN General Assembly
resolution adopting the text of the UNCAC, which also mandates that
the UNCAC COSP consider ways to strengthen action against bribery
and corruption in international organizations, taking into account
privileges and immunities and jurisdiction. The first COSP, held in
Jordan in December 2005, directed the establishment of an open-ended
dialogue bringing together Member States and interested

international organizations to consider these issues. UNODC
subsequently hosted its first workshop on the topic in Vienna from
September 27-28, 2007. The issue was revisited again at the second
COSP in Bali, Indonesia in January-February 2008. The second COSP
ultimately recommended the continuation of the open-ended dialogue,
with a main purpose to exchange best practices and to address the
technical issues highlighted during the first workshop, namely
cooperation between international organizations and Member States,
the exchange of information on on-going investigations, and issues
related to jurisdiction. The U.S. played a major role in drafting
both COSP pronouncements on this subject and has provided
significant expertise to both workshops.

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U.S. DELEGATION AND GOALS
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4. The U.S. delegation (USDEL) to the January 27-28 workshops
consisted of Patt Prugh, Office of the Legal Adviser, Law
Enforcement & Intelligence, Department of State; James Gresser,
Office of the Legal Adviser, Diplomatic Law, Department of State;
Mark Mendelsohn, Fraud Section, Criminal Division, Department of
Justice; and John Brandolino, INL Senior Advisor to UNVIE. The
purpose of the U.S. participation in the workshop was to provide
expert information on U.S. practices, to guide the workshop
discussions to avoid a result that would be inconsistent with U.S.
policies or laws, to learn from other delegations, and to assist
both international organizations and the COSP in their efforts to
deter and detect corruption and fraud.

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CRIMINALIZING PASSIVE BRIBERY OF IO OFFICIALS
-------------- -


5. The French delegation commenced substantive discussions with an
intervention highlighting the importance of criminalizing "passive
bribery" - the acceptance of a bribe by a member of the IO staff.
UNCAC obligates States Parties to criminalize the active bribery of
officials (offering a bribe to an official of a public international
organization),but not the criminalization of passive bribery of
officials of public international organizations. In a private
conservation, a UNODC official noted that the U.S. does not
expressly criminalize passive bribery, and asked USDEL whether we
wished to discuss the U.S. position. We declined to discuss the
matter on the floor but explained to UNODC staff that although
passive bribery is not an offense under the FCPA, there are other
statutory offenses that may cover this conduct, for example, federal
wire fraud. (COMMENT: Although not required under the UNCAC, the

Department of Justice may wish to consider whether there would be
merit to criminalizing passive bribery. END COMMENT)

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INTERFACE BETWEEN MEMBER STATES AND IO'S
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6. Subsequent discussions concerned the interface between IO's and
the prosecutorial authorities of the Member States having
jurisdiction over an act of corruption. USDEL and other delegations
expressed the view that early notification to national authorities
was important in all criminal cases, but particularly in bribery and
corruption cases which frequently are complex and involve rapid and
multiple movements of funds. A number of IO representatives
cautioned that early notification would require a waiver of
privileges and immunities. It was noted by the USDEL that
notification and waiver were distinct, and that even in those cases
where waiver was necessary, waivers could be limited. The UN's
Office of Investigative Oversight Services (OIOS) in Vienna noted
that under current UN regulations, an employee can be sanctioned for
divulging information outside the IO. The USDEL intervened to say
that such policies clearly run contrary to the interests of the
organization to detect and deter corruption, and that IO's need to
reverse the culture of protectionism that uses immunity to shield
internal corruption. The interests of justice should take
precedence over an IO's desire to investigate and take personnel
actions for misconduct. (COMMENT: This issue may be fertile field
for a future decision by the third COSP in November. END COMMENT)

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DEALING WITH MULTIPLE JURISDICTIONS
--------------


7. During the workshop, it was noted that in addition to the state
with territorial jurisdiction, other states could also conceivably
have a jurisdictional basis to try individuals who would abuse their
positions of trust and confidence in an IO for corrupt purposes.
One example would be the state having active personality
jurisdiction when one of its nationals commits the offense. The
USDEL internally discussed whether an IO should be encouraged to
notify all states with the potential to assert jurisdiction, and, if
so, whether a preference should be given to the Member State with
territorial jurisdiction (the offense was committed within its
territory). We decided not to raise these issues without first
bringing these matters to the attention of USUN and other interested
U.S. entities. Neither U.S. domestic law nor customary
international law imposes a priority regime among states having
bases to prosecute for the same offense. In the afternoon
discussions, UNODC posed a number of questions for the workshop to
consider. Among them was whether there were adequate provisions for
IO's to recover assets lost as a result of internal bribery or
corruption. USDEL explained the process available to IO's in the
U.S. that permits them to recover through the government's
prosecution under the Foreign Corrupt Practices Act (FCPA).
Following this intervention it was noted that the potential for
asset recovery provided an added incentive for IO's to promptly
inform national authorities when the IO learns of credible evidence
that an IO has been the victim of bribery or corruption.

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USDEL PUSHES RECOMMENDATIONS
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8. UNODC sought to end the workshop by offering the participants a
number of "conclusions" to be adopted by consensus. Very lively
discussion ensued, with a number of delegations objecting that the
workshop had not been asked to reach conclusions and the
participants had not been authorized by their authorities to take
such action. USDEL specifically objected to the first proposed
recommendation, which stated that Member States should revise their
domestic laws to ensure the admissibility of evidence gathered by
international organizations. UNODC agreed to withdraw the
recommendation. The representative of the UN Office of the Legal
Adviser questioned the meaning of the term consensus, and also
questioned whether any agreement could be reached. At this point,
the discussions rapidly deteriorated and it appeared we would not
have any agreement on the content of the workshop report.


9. USDEL then requested an opportunity to share several points for
inclusion in the report that the group would prepare for the third
COSP in Doha. Other delegations supported the U.S. intervention and
requested that the U.S. summary of the discussion replace the
"conclusions" proposed by UNODC. The workshop participants reviewed
each of the points noted by USDEL and supplemented only a few of the
points raised, particularly in the area of preventive measures. The
points raised by the US delegation are attached at Para 13.

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CHIEF EXECUTIVE BOARD (CEB) MEETING
--------------


10. On the afternoon of January 28, UNODC hosted its annual CEB
meeting, attended by representatives of UN international

organizations and with a number of Member States participating as
observers. UNODC explained the goal was to establish an integrity
protocol between CEB members highlighting desirable practices and
standards to achieve goal of fighting corruption. This "Integrity
Initiative" reflects the commitment of Secretary General to hold UN
organizations and staff to the highest integrity standards.
Participation is voluntary and one organization (IMF) has decided
not to join the effort. Participating entities are asked to utilize
the principles embodied in the UNCAC to upgrade their existing
integrity standards and, thus, move to some common level of
convergence in their individual agency standards


11. UNODC noted during the meeting that the Integrity Initiative had
yet to achieve full compliance by all the agencies that had
voluntarily agreed to participate, and warned that if this goal is
not realized by the next COSP, then IO's will appear to be less than
committed to fighting corruption. Much of the discussion centered
somewhat distractingly around the posting of IO questionnaires and
other documents relating to the initiative to a website maintained
by UNODC. The fact that the website was determined to be accessible
to those outside the participating IO's caused at least one IO to
request the removal of its information. The CEB discussed making
the integrity initiative a permanent agenda item for the UN High
Level Committee on Management (HLCM),but no decision was taken.
From the discussions, it emerged that there may be merit at the
third COSP to a decision calling upon Secretaries General of IO's to
fully embrace the UNCAC principles, encourage all CEB members to
participate in the voluntary Integrity Initiative, and urge all
participants to provide UNODC proper information on their efforts
for posting at the UNODC website.


12. COMMENT: Several factors contributed to the success of the
workshop on international cooperation. The breadth and depth of
experience of a number of delegations, including USDEL, resulted in
lively and meaningful exchanges. But as expected, some Member
States sent only their Vienna representatives, who lacked subject
matter expertise. USDEL literally saved the international
cooperation workshop by pushing for the group to adopt a summary of
discussion in the face of general reluctance to do so. The
resulting recommendations, based largely on the USDEL proposals,
will now form the basis for further action and dialogue on these
issues, particularly during the third COSP to be held in Doha in
November. END COMMENT


13. Begin text of USDEL proposal:

Many member states and IOs expressed a positive opinion supporting
the workshop and the hope that this open-ended dialogue will
continue;

Member states should continue to use their voices and votes in those
IOs in which they participate to ensure that those organizations
embrace the UNCAC principles;

Reiterate the consensus that the existing international legal regime
with respect to the privileges and immunities of IOs, including the
right and duty of IOs to waive immunity when the interests of
justice so require and the immunity can be waived without prejudice
to the interests of the organization, [needs no modification.];

In light of the alignment of interests of the public international
organizations and the member states of the CAC, and continuing to
respond to the mandate of the General Assembly in Resolution 58(4),
paragraph 6, participants in the workshop recommend that IOs and
member states take the following actions:
A Establish contact points in both the states and the organizations
to facilitate the exchange of information regarding the bribery of
officials of the international organizations.

B. Those points of contact should meet regularly, first to establish
lines of communication and thereafter to address relevant issues of
common concern as they arise.

C. As a preliminary matter, these discussions should include (1)
local practice with respect to recovery of assets; (2) collection of
evidence; and (3) chain of custody.

Those organizations that don't already have a written policy with
respect to cooperation with national authorities in corruption cases
should adopt such a policy consistent with the principles set forth
in the Convention.

The policies of all international organizations should include:

A. Recognition of the organization's obligation to facilitate the
proper administration of justice and therefore to notify the
competent national authorities of credible allegations of corruption
as early as possible.

B. A uniform and principled approach to notification and
cooperation.

C. A recognition that in certain case more than a single state may
be competent to exercise jurisdiction over the alleged offense, and
that there may be limits on the capacity of any one such state to
respond effectively.

Public international organizations should explore ways to develop


common approaches in cooperating with national authorities in member
states.

Take note of the importance of implementing preventive measures in
the international organizations in combating corruption. These
include: (1) creation and application of an internal audit function;
(2) establishment of an independent investigative body; and (3)
contractual audit rights. END TEXT

PYATT