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.
In 2010, President Obama apparently put his weight behind the idea.
He was likely frustrated that the FCPA doesn’t reach corrupt foreign officials.
As of today, however, 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.
Do you think ‘grand corruption’ should be a ‘crime against humanity’ under the Rome Statute and used to arrest, put to trial, and punish kleptocrats?
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When kleptocrats squander millions or billions while their citizens starve for lack of government services, it may well rise to the level of a crime against humanity. But out of respect for the conduct already recognized as such a crime, we should be very careful; bribing the customs agent or safety inspector is indeed damaging, but it is not genocide. More to the point, the international organizations — the ICC, ICJ, the various UN bodies — could only ever reach the most egregious and high-profile forms of corruption. The more pedestrian, systemic, and pervasive corruption, of the sort that the FCPA and other statutes are designed to address, is well beyond the capacity of international organizations. The solution to systemic corruption lies in the national enforcement of laws enacted pursuant to international conventions.
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When considering whether Grand Bribery should be a ‘crime against humanity’ under the Rome Statute, the analysis of renowned French scholar, Professor Serge Sur, is particularly insightful. He states that there are three stages in the development of international criminal law.
The first stage concerns police and judicial cooperation between States, usually established through a convention, in order to improve the enforcement of national law. Extradition treaties are a good example of this.
The second stage is reached when criminal offences are defined by international norms, generally by multinational conventions. This internationalisation however remains normative and not institutional as it is national law and national courts that deal with the repression of violations.
The international combat against bribery remains at this second phase of development.
In the interests of efficacy, the combat against bribery should be elevated to what Professor Sur describes as the third level, namely through means of an international court, having jurisdiction over authors of crimes provided for by international norms and following international procedure. The International Criminal Court would appear to be the ideal candidate for such an evolution.
Several scholars have indeed argued that ‘graft’ should constitute a crime against humanity, including Professor Ilias BANTEKAS (« Corruption as an International Crime and Crime Against Humanity – An Outline of Supplementary Criminal Justice Policies », Journal of International Criminal Justice, 2006, n° 4, pp. 466 – 484) and Professor Sonja STARR, « Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations », 101 Nw.U.L.Rev, pp. 1257 – 1314 “.
In theory, making Grand Bribery punishable under the Rome Statue would fill a number of gaps in the current normative framework (universal jurisdiction, more stringent criminal sanctions, facilitation of asset recovery…). In reality such a change would demand a considerable amount of political will on a global level, so much so that it seems unlikely in the short term. Moreover, how effective would such a development be without the participation and support of the Unites States or China who are not even State parties to the Rome Statute?
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Richard L. Cassin
What other criminal activity creates more global victims than grand corruption? Yet the international fight against it is weak, uneven, and haphazard.
I agree with Andy that a statute like the FCPA isn’t the right way to fight grand corruption. Philip says declaring it to be a crime against humanity under the Rome Statute would plug the gaps in the international legal framework.
So, like the English, let’s pray for a Good King — in this case, national leaders who will put their prestige, power, and resources on the line to expand the Rome Statute’s definition of crimes against humanity.
That’s a huge task, as Philip says, and won’t happen quickly. But nothing can happen until the effort begins. And who knows? Perhaps when a few like-minded leaders say ‘enough,’ kleptocracy will be seen everywhere for what it is and has always been — a grotesque crime against humanity.