Grand Corruption: Strategies for Preventing International Impunity

Author:Esther Hava
Position:Facultad de Derecho. Universidad de Cádiz, Spain
Pages:481-521
SUMMARY

This article presents an analysis of the arguments for and against including the most serious cases of corruption within the jurisdiction of the International Criminal Court. The purpose is to suggest a realistic strategy for advancing towards the goal of preventing impunity in such cases. It therefore begins with a presentation of the problems posed by the concept of "Grand Corruption" itself,... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2015 e Institute for Migrant Rights Press
481
Grand Corruption
S  P I
I
EsthEr hava
Facultad de Derecho. Universidad de Cádiz, Spain
E-mail: esther.hava@uca.es
is article presents an analysis of the arguments for and against including
the most serious cases of corruption within the jurisdiction of the International
Criminal Court. e purpose is to suggest a realistic strategy for advancing
towards the goal of preventing impunity in such cases. It therefore begins with a
presentation of the problems posed by the concept of “Grand Corruption” itself,
as well as its classication as a discrete crime. Next, continuing the theme of
the ICC regulatory framework, there is analysis of the various classications
possible for the phenomenon of corruption within the workings of the Court.
ese are divided into actions already subject to prosecution, such as corruption
of witnesses before the Court, and the actions that could be prosecuted without the
need to amend the Rome Statute. In the nal section, there is a brief exposition
of the principle weaknesses in the theories proposing that the most serious cases
of Grand Corruption be considered crimes against humanity as categorised in
the Rome Statute. is is followed by a description of the strategy judged most
appropriate for the purpose in mind, i.e. including the factors that characterise
Grand Corruption among the essential criteria for conrming the jurisdiction
of the ICC in respect of a specic situation or case, as well as for deciding the
penalty to be imposed on those guilty of such crimes.
Keywords: International Criminal Law, International Procedural 1Law,
Comparative Law, International Jurisdiction, Impunity.
The Indonesian Journal of International & Comparative Law Volume II Issue 3 (2015) at 481–521
Esther Hava
482
I. INTRODUCTION
For some time, there has been general agreement that it is necessary to
pursue the most serious cases of corruption at international level. Simi-
larly, it is necessary to remove the impunity that most of the perpetrators
of such crimes currently enjoy. Clear evidence of this broad consensus
exists in the form of the United Nations Convention against Corruption
of 2003, also known as UNCAC.1 e aforesaid Convention was signed
by 140 signatory States and now has 171 parties, including the European
Union.
e broad support for the Convention against Corruption from the
international community is probably is its most valuable aspect. However,
this cannot hide the soft law nature of most of its provisions. It is this
factor that reveals the limitations of the aforesaid instrument when it
comes to engaging in a genuine ght against the most serious corruption
phenomena. is is especially true of ensuring that the perpetrators are
investigated, tried and punished within the framework of a criminal
procedure.2 For this reason, social movements that have spearheaded
international awareness regarding corruption are redoubling their eorts
to ensure that international conventions do not become purely symbolic
legislation.
In a similar vein, the 2015 Strategy of Transparency International (TI)
gives as one of its strategic priorities: “more eective enforcement of laws
and standards around the world and reduced impunity for corrupt acts.”
Among its key areas of focus on the relevant conventions themselves, it
includes its aim to “contribute to a stronger enforcement of international
anti-corruption conventions.”3 Another body, the Global Organization
of Parliamentarians against Corruption (GOPAC) has recently adopted
1. e United Nations General Assembly adopted the UNCAC on October 31, 2003
in New York (Doc. A/58/422) and opened for signing in Merida, in December of
the same year.
2. See Philippa Webb, e United Nations Convention against Corruption: Global
Achievement or Missed Opportunity?,8 J. I’L. E. L. 191(2005).
3. See T I, S ,
http://www.transparency.org/whatwedo/publication/transparency_international_
strategy_2015.
Grand Corruption
483
Esther Hava
a more ambitious perspective on the matter. It aims to “encourage states,
the United Nations, and international institutions to recognise crimes of
Grand Corruption as being crimes against humanity” and to “encourage
states, the United Nations, and international institutions to develop
additional international mechanisms to apprehend, prosecute, judge, and
sentence those who have committed crimes of Grand Corruption.”4 Such
declarations turn the focus, albeit implicitly, on the sole international
judicial court of a permanent nature with the powers to pursue, judge and
sentence international crimes. is refers, naturally, to the International
Criminal Court (ICC).5
II. DEFINING GRAND CORRUPTION
In attempting to ght eectively against a criminal phenomenon and
prevent impunity for the perpetrators, it is necessary to know what we
are ghting. Obviously, anti-corruption activists have a clear idea of the
reality that they are facing. However, the issue is one of expressing this
reality as a specic concept, dened as precisely as possible. Such a con-
cept would enable specialists in criminal law to propose new laws, or
interpret those that already exist. e result would be eective legisla-
tion for pursuing corruption, which would not require sacricing any of
the general principles and safeguards underpinning all punitive systems
that respect fundamental rights. is perspective is judicial, rather than
political or social, in nature. Diculties arise as soon as we try to dene
the phenomenon of Grand Corruption. is is probably why the inter-
national anti-corruption treaties issued to date have resisted including
written denitions of what exactly should be understood by corruption.6
4. See GOPAC,Fifth Conference of States Parties to the United Nations Convention
Against Corruption, Nov. 25-29, 2013, Panama City, Panama, Final Report,
http://gopacnetwork.org/Docs/Report_5CoSP_EN.pdf (last visited Mar. 3,
2015).
5. Created by its constituent instrument, the Rome Statute, which was adopted on July
17, 1998 during the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court.
6. See R I, C, A R,   P 
P  P I L: T H R  B G

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