Fifteen Eighty Four

When I sat down to write Fighting Grand Corruption, I didn’t think I’d be writing it not just about Latin America (with a smattering of other countries) but also about my own country, the United States. But these days, the news comes fast and furious: self-dealing, cronyism, channelling of economic benefits to a select few, dismantling of oversight and safeguards, and threats and attacks on potential sources of resistance. 

I set out to describe the effects of state capture or kleptocratic rule, involving large-scale, systemic “grand” corruption, different in nature, not just scale, from the petty bribes of popular imagination.  Grand corruption infects many countries and everywhere leads to violations of a wide range of human rights.  The international law regime that was set up to deal with corruption hasn’t kept pace. 

Almost all states are parties to the UN Convention Against Corruption (UNCAC).  Articles 34 and 35 of that treaty require states to allow victims to seek redress, but have been rarely invoked.  The treaty and others like it were negotiated assuming that states wanted to fight corruption.  What if they don’t, at least not the corruption of their friends and family?

Luckily, the incipient convergence of anti-corruption and human rights provides grounds for hope.  Scholars, activists and, increasingly, international bodies in both fields have been mapping convergences and ways to use human rights law to call out states for complicity and focus on victims of corruption.  I trace evolution in the regional and global human rights bodies, and the much less developed moves in a similar direction in anti-corruption bodies.

What else could be done? I propose two strands: first, a shift to private enforcement of anti-corruption law, with an emphasis on both representation and redress for corruption victims. Second, as has been the case for at least some grave rights violations, the use of third-party courts, agencies, and institutions to act in the face of captured states and catalyse domestic action.

 We’re not starting from zero here.  I look at recent efforts to strengthen domestic legal systems to better attack corrupt and repressive networks in government.  I trace the origins, powers, successes and limitations of the International Commission Against Impunity in Guatemala (2008-2019) and why the backlash against it was strong enough to shut it down.  While the Guatemalan experience is unlikely to be repeated, technical and strategic support for national legal systems is not.  I also consider the role of sanctions on individuals and companies, cases in third-party courts, and the role of private standards and development banks in combating corrupt practices.

A human rights orientation involves reconceptualising who the victim of corruption is and the consequences of that determination.  Traditionally, the victim of corruption has been considered the state itself.  But what about all the people who were jailed or bankrupted because of bribes to a crooked judge, or the children poisoned by adulterated meat in school lunches due to kickback schemes (as happened in Peru), or hospital patients who died because all the money for treatment was diverted to the leaders of the ruling political party (as happened in Venezuela)?  What about the dams, roads or power plants that made no economic or ecological sense but were approved due to self-dealing and bribes, and ended up destroying the livelihood and culture of entire communities (as happened in Honduras and elsewhere)?

There are countless examples of violations of the whole gamut of human rights that would not have happened without an underlying corruption crime.  Judges in several countries have found that these people are victims and should be represented in court, either directly or through civil society groups whose mission is to combat corruption.  I tell these stories about how opening up the courts in criminal, civil, constitutional, and administrative actions to the victims might enhance human rights and anti-corruption work.

If victims are allowed into cases, won’t they flood the system and demand impossible amounts of money as damages?  That’s the common refrain of the powerful and those in charge of justice systems.  In response, I borrow from the soft law and practice developed around grave human rights violations to argue that reparation doesn’t just mean money but a wide range of actions, from restitution to apology to collective goods and services for affected communities to anti-corruption reforms.  I delve into how different types of reparations might work in different types of grand corruption, using examples from international law and practice around asset recovery and return, as well as emerging national law and practice.  I consider some of the complexities and opportunities of using plea bargains, deferred prosecution agreements and settlements, measuring damages and proving sufficient causal links between the illicit acts and the harms.  In many cases, traditional tort doctrines like loss of opportunity apply, while others are more akin to actions for diffuse harms like environmental or consumer protection. 

Infusing anti-corruption work with human rights norms also cuts the other way:  human rights-related work would benefit from a corruption lens.  I look at two examples:  transitional justice and international criminal justice.  As a long-time transitional justice scholar, I wondered if there were common elements in post-dictatorship or post-armed conflict societies that explained why some had morphed into captured or kleptocratic states.  I examined Guatemala, South Africa, Tunisia and Colombia as possible examples.  On international criminal justice, I used the examples of Venezuela and Mexico to examine how a corruption lens might inform and enrich prosecutions for crimes against humanity. 

A final chapter considers the pros and cons of creating an International Anti-Corruption Court, and spells out the links of the anti-grand corruption agenda to current fights against economic inequality, authoritarianism, resource extraction and the climate emergency, and for corporate accountability, labour and indigenous rights.  As each of these movements and concerns loses its silos, the uphill struggle to reclaim the common good will become a little bit easier.