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Thursday
May252017

Angela Barkhouse: Kleptocrats should face the International Criminal Court

The arguments for prosecuting grand corruption at the International Criminal Court as a crime against humanity are persuasive.

While States may openly declare a war on corruption, the reality often is that very little is recovered in practice, or that amnesties are made with little transparency.

Perhaps one of the most important advantages is the principle of complementarity, where the International Criminal Court or ICC can accept jurisdiction if a State is unwilling or unable to investigate or prosecute a case, or if cases are not being conducted “genuinely,” thus ensuring impunity does not prevail, a consistent theme in cases of grand corruption.

Indeed it is not unusual to experience obstruction or delay by certain parties in grand corruption cases. Even in a regime change context, the new administration usually relies upon the same civil service which served the prior regime. After years of systemic corruption, it would be highly unlikely to find a well-funded and experienced team of financial investigators with the tools to conduct wide-ranging and complex investigations. 

By the ICC establishing jurisdiction and thus control over investigations when the national justice system is unable to undertake these, a prosecution wouldn't be prevented from proceeding.

Immunity would not exist. The ICC does not recognize functional immunity, including serving heads of state, as a bar to prosecution. 

And importantly, the jurisdictional reach of the ICC extends to state parties where the offense has taken place, for example the laundering of illicit proceeds in countries which are party to the ICC.

The ICC focus is on individual liability, and typically on senior leadership. The nature of grand corruption therefore fits the prosecutorial strategy of the ICC.

The core international crimes which fall under the jurisdiction of the ICC are genocide, war crimes, crimes against humanity, and aggression. Those are considered international crimes because they do not only cover the international aspects of criminal law but are also directly enforced at the international level through agreed norms.  

Each of those crimes represents conduct which is a direct or indirect threat to the peace and security of the international community, or conduct which is shocking to the collective conscience of the worldwide community. And therein may lie the problem when it comes to the prosecution of grand corruption.

The ICC was developed as a mechanism to prosecute those who have caused human suffering through commissioning “the most heinous crimes to humankind,” and are so reprehensible as to warrant international intervention. Any crime-against-humanity argument must satisfy the customary norms of “seriousness” and be “grave.” 

Many view corruption as an economic crime that is best prosecuted domestically, or bi-laterally. Those same people usually fail to see how corruption could be seen to threaten peace and stability, or be considered on a par with genocide or war crimes.

In my view, grand corruption is a crime that is of the most serious concern to the international community. When State funds are diverted into the pockets of kleptocrats, the result is often disruptions to schools, hospitals, housing, water and food supplies, and other civil services. Those disruptions are therefore a direct cause of violations of liberty, dignity, civil and political rights, the right to family life, education, health care, and so on.

That's why I have been contributing to a policy report in conjunction with the Universal Rights Group, to consider corruption in connection with human rights violations.

Still, there will be times when corruption is best dealt with through inter-regional venues, foreign civil courts, or even domestic courts. Sometimes those forums create a broad range of effective options and remedies, including criminal prosecution in the domestic courts, private civil actions for financial wrong-doing, conviction-based asset forfeiture, and insolvency mechanisms to wind up entities that received the proceeds of corruption. All these can help achieve economic redress for the State and its citizens and until the ICC accept jurisdiction, this will continue to be the way forward. So long as there is recognition that not all asset recovery cases are the same and each instance may require a different approach to the assumed norm.

Yet, where grand corruption causes harm that meets the gravity threshold under Article 7 of the Rome Statute of the International Criminal Court ("Crimes against humanity"), the ICC is the proper forum for redress.

The criteria for admissibility to ICC jurisdiction include causing violent bloodshed, civil unrest and instability, or causing significant risks to international peace and security. When evidence of any of those are present and can be linked to grand corruption, I believe the Prosecutor could formulate an Article 7 charge based on a crime against humanity.

Ultimately the ICC prosecutes the consequences of an action, not the ideology behind it. Therefore with grand corruption, the “why” should not color the Prosecutor’s decision to prosecute.

If the consequences of grand corruption fulfill both the legal construct and the contextual elements of a crime against humanity under the Rome Treaty, the ICC has jurisdiction and should accept it. That action may well be the deterrent required to stem the ever increasing looting of public wealth.

____

Angela Barkhouse, pictured above, is a Director at Kalo Advisors, a company founded on the core principles of finding ethical solutions and creating a lasting impact.  She has 15 years of professional experience investigating bribery and corruption, and making cross-border asset recoveries. She holds a Bsc in Applied Accounting from Oxford Brookes University and a Msc in Criminal Justice Policy from the London School of Economics and Political Science. She is a Fellow of the Association of Chartered Certified Accountants and a Certified Fraud Examiner. https://www.linkedin.com/in/angelabarkhouse/

Reader Comments (4)

Damn good idea! That's why it won't work. Those who would make the decision to prosecute are the same class of people who would be most likely prosecuted. Without a global democratic system capable of holding corrupt leaders accountable...by ballet or bullet...there isn't much that will stop these kleptocrats...except perhaps some hacker vigilantes freezing and seazing the ill-gotten trillions.
May 25, 2017 | Unregistered CommenterChuck Woolery
Ms. Barkhouse’s policy recommendations appear to be deliberately disconnected from the reality of international enforcement. If we continue to define corruption as limited to kleptocracy (yes, with more visible victims) and not warmongering or influence peddling, the ICC would continue to be regarded another useless tool that helps us feel slightly better than other people.
May 26, 2017 | Unregistered CommenterOjuolape A.
There are a few issues that would make this proposal very difficult. First, I doubt that the State Parties to the Rome Statute would expand the jurisdiction of the Court to corruption, although your theory that corruption is the root of these other evils is correct. Second, the ICC has a very difficult time obtaining even basic evidence from State Parties. It would be far more difficult to get the State Parties to cooperate and provide banking and other financial evidence necessary to track the corrupt financial flows. Third, if the corrupt regime is still in power, there would be no cooperation to mutual legal assistance requests made by the ICC.

Corruption is certainly the underlying cause to many deplorable situations in the world - disease, poverty, lack of education and even terrorism. However, I don't see ICC jurisdiction as the answer to this problem. Closer cooperation between national jurisdictions, increased investigative capacities and lower hurdles to the sharing of evidence and information are the keys to more successful corruption prosecutions and asset recoveries.
May 26, 2017 | Unregistered CommenterTom Lasich
Grand corruption being a violation of human rights and denying thousands if not millions of people dignity is fact. There is no grand corruption that doesn't affect vulnerable populations except probably in the developed world where the impact may not be as grave. Many serious problems in the developing world result from grand corruption that has led to unnecessary loss of life e.g infrastructural deficiencies leading to an expectant mother and unborn baby losing lives while being rushed to hospital on rough terrain where a tarmac road was expected. A 30 minutes trip may take 3 more hours because of the road condition. Proving that money was spent on a non-existent road can be tricky with Governments unless transparent Government financial reports are published regularly and shared with all stakeholders. Once proper accountability and transparency on spending public funds can be established, then showing that corruption has had grave human consequences can be made easier. It would be a good path to ensure all are aware of the grave harm grand corruption triggers and potential consequences for those involved.
May 30, 2017 | Unregistered CommenterIsaiah K
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