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War in Ukraine: When does a bribe become a ‘good bribe’?

As of March 27, the number of refugees fleeing Ukraine since the Russian invasion started reached nearly 3.9 million. Most of the refugees — mainly women and children — are now in neighboring Poland, Romania, Moldova, Belarus, Slovakia, and Hungary. Without trivializing their awful plight, I want to ask if it matters how those refugees crossed borders, and how we should view their use of bribery to reach safety.

That refugees sometimes resort to bribery at border crossings and elsewhere is common knowledge. But it’s also true that bribery is now universally criminalized and condemned because of its devastating effects. So, how do we reconcile the “insidious plague” of corruption, as the UN Convention Against Corruption describes it, with refugees resorting to bribery in order to protect their lives and their loved ones?

The legal rights of refugees and the obligations of countries toward them are embodied in the UN’s 1951 Refugee Convention and 1967 Protocol, now adopted by more than 140 countries. The 1951 Convention defines a refugee as someone who is unable or unwilling to return to their country of origin “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

The cornerstone of the 1951 Convention is the principle of non-refoulement contained in Article 33. According to this principle, a refugee should not be returned to a country where they face serious threats to their life or freedom. The principle of non-refoulement is further protected by the right not to be expelled, except on “grounds of national security or public order” (Article 32) and the right not to be punished for illegal entry into the territory of a contracting State (Article 31).

Individuals are not entitled to refugee status if “they have committed a crime against peace, a war crime, a crime against humanity or a serious non-political crime outside their country of refuge; or they are guilty of acts contrary to the purposes and principles of the United Nations.”

To my knowledge, the UN High Commissioner for Refugees — the agency that administers the 1951 Convention — hasn’t spoken publicly about refugees using bribery, probably because any seeming endorsement of corruption violates UN principles. The same concerns have apparently inhibited most public debate about the topic.

However, a 2015 white paper authored by two members of the OECD Directorate for Financial and Enterprise Affairs talked about the smuggling of refugees and corruption. “To leave their home country (or the host country where a refugee camp is located), or to enter a destination country, refugees often need to resort to extralegal measures.”

The “extralegal measures” the authors had in mind include bribery. A sidebar in the paper with the heading “Opportunities for bribery” lists as potential bribe recipients border police, immigration officers, transportation and housing officials, and officials issuing travel and residence documents.

Although the OECD paper raised the topic, scholars have been reluctant to discuss refugees and bribery. That’s probably because any written claim that corruption might sometimes be justified will eventually result in accusations the author supports bribery, no matter how ridiculous the accusations might be.

A scholar who nevertheless stuck his neck out is Philip Nichols, professor of legal studies and business ethics at Penn’s Wharton School. He wrote a 2015 law review article about what he calls “good bribes.”

Professor Nichols first stipulates, “Most attempts to justify the payment of a bribe have no merit.”

But he then considers bribes that Oskar Schindler — a German national and member of the Nazi party — paid during World War II to save the lives of at least a thousand Jewish workers at his factory in Poland.

Based on Schindler’s case, along with “at least one bribe [that] was paid by the Underground Railroad, which rescued people from the horrors of slavery” in the United States, and seemingly widespread bribery in North Korea to escape the repressive regime, Nichols concludes that some bribes can be justified.

He says (with my emphasis),

Such bribes do not present a new checklist for evaluating bribery, nor do they represent a new trope of thinking. Rather, unique circumstances raise such bribes above the rules against and concerns about paying bribes.

Surely, one of history’s unique circumstances is war that engulfs innocent civilians and turns them into refugees. Just as it would have been ludicrous “to have demanded that Schindler be put on trial for bribery” for what he did during WWII, as Nichols says, so it would be ludicrous to penalize Ukrainian refugees for paying bribes in their former home country or new domicile that helped them and their families find safety.

Their bribes, like Oskar Schindler’s, fall into the tiny but real category of “good bribes.”

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