When should foreign bribe-takers be prosecuted?

In its advocacy for the Foreign Extortion Prevention Act (FEPA), which seeks to make it a criminal offense for foreign public officials to seek or receive bribes, the U.S. Helsinki Commission contends that the bill would “bring U.S. laws in line with international best practices.” In fact, the proposed legislation constitutes a significant departure from the prevailing U.S. and international approaches.

On the face of it, unlike the FCPA, the FEPA does not limit its reach to cases with a U.S. nexus. This, I hasten to add, is subject to interpretation in light of other legal rules that may apply. Thus, Professor Mike Koehler points out that the general presumption against extraterritoriality could play a role.

But if the FEPA does establish universal jurisdiction over foreign bribe-takers, it will enter uncharted waters. And to consider its merits in a meaningful way, members of Congress should clarify when exactly they intend for it to be applied. This holds true both for the U.S. and other countries that may wish to follow suit by introducing similar legislation.

There’s no need to rehearse here the well-known difficulties of extraterritorial enforcement. Unless the assets derived from the offense or the defendant is within the jurisdiction, the effects of prosecution may remain largely symbolic. Not useless, since symbolic gestures matter, but perhaps not the wisest use of scarce resources either.

Yet there is, in my view, an even greater challenge. With a virtually infinite supply of potential cases for investigation from around the world, what principles will guide their selection and how does one avoid its politicization?

The U.S. government already has to confront this when implementing anti-corruption sanctions programs under the Global Magnitsky Act and the Section 7031(c) immigration sanctions. Note, for instance, the U.S. propensity to only sanction several mid-level officials per country. But targeted sanctions are an inherently political instrument, and so a degree of diplomatic prudence is more acceptable than in the law enforcement context.

If prosecutions were limited to cases with a U.S. nexus after all, then one can query whether current laws do not suffice. In particular, in those instances where criminal proceeds have been invested in the U.S., recall the successful convictions of Guinea’s Mahmoud Thiam and Ukraine’s Pavlo Lazarenko.

In their compelling article arguing for the criminalization of foreign bribe-taking, Thomas Firestone and Maria Piontkovska refer to Article 16 of the UN Convention against Corruption, which requires states to consider criminalizing bribe-taking by foreign public officials. But this provision should be read in conjunction with Article 42, which sets out jurisdictional rules for offenses established under the Convention, based on traditional jurisdictional principles accepted in international law.

In fact, international law is normally understood to require some connection between the offense and the prosecuting state’s legitimate interests. For the United States, this may be a theoretical construct, but those states that have consented to the jurisdiction of the International Court of Justice should reckon with judicial controversy if they prosecute high-ranking foreign officials, as demonstrated by the Arrest Warrant Case (DRC v. Belgium) and the ongoing Immunities and Criminal Proceedings Case (Equatorial Guinea v. France).

So, before the United States rushes into adopting a new statute, let alone before other countries do so too, more clarity is desirable about precisely when this legislation is going to be applied. Otherwise, legislatures risk making more laws while making little difference, which could detract from the credibility of their well-meaning efforts.

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Anton Moiseienko, pictured above, is a Research Fellow at the Centre for Financial Crime & Security Studies at RUSI, a UK-based think tank. His research interests include economic crime, cybercrime and international law.