Financial crime in its various manifestations is the principal reason many societies around the world remain impoverished and subjected to the most dehumanizing conditions. It seems therefore befitting that those found guilty of financial crimes such as the theft of public resources face the most stringent penal sanctions. In fact, there have been calls, even here at the FCPA Blog, to have grand corruption classified as a crime against humanity pursuant to Article 7 of the Statute of Rome that establishes the International Criminal Court.
Entries in International Criminal Court (6)
Pundits, professors, and politicians in the West are debating whether corruption is a crime against humanity. But in India there's no doubt about the answer. Yes, corruption violates human rights.
The International Criminal Court in the Hague hasn't been used against kleptocrats.
The Rome Statute that created the court extends to "crimes against humanity" but no one knows if that includes graft.
Pre-emptive asset freezes would trigger regime changes and potential shifts in regional balances of power. That's too much blow back for Switzerland or individual countries to risk, unless they're acting according to international norms and expectations.
In a policy shift that could lead to the international arrest and trial of kleptocrats, the White House last week said it views widespread corruption as a violation of basic human rights and is working to advance that view globally.
According to the administration's May 2010 National Security Strategy, the U.S. will "promote the recognition that pervasive corruption is a violation of basic human rights and a severe impediment to development and global security." Although the prior administration linked corruption to global and national security, viewing graft as a human-rights violation is a new position.
The administration said:
Strengthening International Norms Against Corruption: We are working within the broader international system, including the U.N., G-20, Organization for Economic Cooperation and Development (OECD), and the international financial institutions, to promote the recognition that pervasive corruption is a violation of basic human rights and a severe impediment to development and global security. We will work with governments and civil society organizations to bring greater transparency and accountability to government budgets, expenditures, and the assets of public officials. And we will institutionalize transparent practices in international aid flows, international banking and tax policy, and private sector engagement around natural resources to make it harder for officials to steal and to strengthen the efforts of citizens to hold their governments accountable.
The International Criminal Court in the Hague hasn't been used against kleptocrats. The Rome Statute that created the court extends to "crimes against humanity" but no one knows if that includes graft. Commentators, academics and activists have been pressing the case that grand corruption should be internationally outlawed. This is the first formal indication that President Obama, who may be frustrated that the FCPA doesn't reach corrupt foreign officials, could be putting his weight behind the idea as well.
There's a catch. As of today, the United States isn't one of the 108 State Parties to the Rome Statute. Under the Clinton administration, the U.S. joined the 60 countries that supported the founding of the International Criminal Court. But the Bush administration reversed that policy, citing risks to national sovereignty, and never signed the Rome Statute.
Download the May 2010 National Security Strategy here.
Special thanks to an astute reader in Washington for help with this post.
The United States fights foreign kleptocrats through Proclamation 7750, by denying them and their families U.S. visas. And through Section 314(a) of the Patriot Act, which it can use to reach out to more than 25,000 financial institutions to find accounts and transactions of anyone who may be involved in laundering kleptocratic assets. But there's nothing the United States can do on its own -- or even with its G-20 allies -- to turn back kleptocracy. Only a truly global program with real teeth can do that. And surprisingly, the framework for it is already in place.
The International Criminal Court (ICC), with its seat in The Hague, came into existence on July 1, 2002. It was created by a treaty called the Rome Statute (available here), which now has 108 State Parties. The ICC is a permanent international criminal court, with the mission to "help end impunity for the perpetrators of the most serious crimes of concern to the international community." The Court isn't part of the United Nations; its funding comes from State Parties, voluntary contributions from governments, NGOs, individuals and corporations.
Under the Rome Statute, the ICC Prosecutor can launch investigations after a referral from any State Party or from the United Nations Security Council. The Prosecutor can also initiate investigations by its own motion. So far, three State Parties -- Uganda, the Democratic Republic of the Congo, and the Central African Republic -- have referred to the Court situations occurring on their territories. And the Security Council referred the crisis in Darfur, Sudan -- a non‐State Party. That resulted in an ICC arrest warrant being issued this month for Sudan's president, Omar Hassan Ahmad Al Bashir, for war crimes and crimes against humanity. It was the first time the ICC had issued an arrest warrant for a sitting head of state.
The Court hasn't been used against kleptocracy, and the Rome Statute as written and currently interpreted might not cover it. But commentators, academics and activists are pressing the case for change.
Law professor and scholar Sonja B. Starr, who has worked inside other international tribunals, argued in a 2007 Harvard Law School working paper (available from SSRN here) that the international prosecution of grand corruption is needed and could be effective. She said that "on average, the richer a country is in natural resources, the poorer most of its citizens are likely to be. In many of those countries rich in oil, diamonds, and gold, most of the population lives in abject poverty, lacking in the most basic health, sanitation, and educational services. Meanwhile, government officials accumulate fabulous personal wealth, as billions of dollars vanish from the state’s coffers. . . The consequence is extreme poverty, and extreme poverty kills. Angola’s life expectancy, for instance, is 36.1 years; one-third of all children die before age five."
But, she said, ICC prosecutions might be the answer. Certainly they would disrupt on-going patterns of grand corruption. Arresting kleptocrats is one way; another is tracing and freezing their assets, a remedy well within the ICC's authority and ability to carry out. Even if the defendants could somehow evade arrest and trial, at least the stolen money that's been frozen couldn't be used to keep a corrupt regime in power or destabilize the region. And, she said, with convictions the ICC could order asset forfeitures, resulting in possible recoveries of huge amounts of looted national wealth. She also argued that referring cases to the ICC would increase transparency and accountability, making it harder for kleptocrats to extract bribes from international companies or use financial institutions to move or hide ill-gotten assets.
Father Gabriel Dolan of Nairobi's Catholic Justice and Peace Commission sees all around him the reasons why kleptocracy is a crime against humanity. He too thinks it should be prosecuted by the ICC:
When families spend their lives in 10 x 10 feet rooms and take three weeks to raise funds to bury their loved ones; when your neighbors are deprived of antiretroviral treatment (ART) because of unaccounted billions from the Global Fund for Aids; when casual workers earn Sh300 [$3.75] for 14-hour days and spend two bob to watch the evening news relay how the grand coalition has robbed them today, then you know that grand corruption is a crime against humanity. When hundreds of thousands cannot access secondary education and the majority are condemned to an early grave then you know the heavens cry out for justice. . . .What's the downside? Some countries might not like the idea of a potential flood of ICC arrest warrants and prosecutions. Diplomatic tensions could rise, particularly within regional groupings. That already happened inside the African Union after the ICC issued the arrest warrant for Sudan's Al Bashir. His regional neighbors -- many of whom are State Parties and bound to comply with the Rome Statute -- are conflicted. They aren't sure now whether to invite him for dinner or place him under arrest. And some might wonder if putting kleptocrats at risk of international prosecution will encourage them to hold onto power, when they'd otherwise leave office in exchange for domestic amnesty, which the ICC doesn't recognize.
Where does the U.S. stand? As of today, it isn't one of the 108 State Parties to the Rome Statute. Under the Clinton administration, the United States joined the 60 countries that supported the founding of the International Criminal Court. But the Bush administration reversed that policy, citing risks to national sovereignty, and never signed the Rome Statute.
That hasn't stopped support for the ICC from spreading across all regions, however. Among the African countries, for example, State Parties now include: Benin, Botswana, Burkina Faso, Burundi, Central African Republic, Chad, Congo, Democratic Republic of Congo, Comoros, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius, Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa, Tanzania, Uganda and Zambia.
Will the new U.S. administration shift its policy toward the ICC, and eventually throw U.S. support behind the prosecution of grand corruption? There's been some talk about it in Washington, but no action. At least not yet.
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This is Part III of Cornering The Kleptocrats (Part I is here and Part II is here) and concludes the series. We gratefully acknowledge the practical help and support received from readers in the United States, Europe, Africa and Asia.