Grand Corruption: UN, World Bank, and Global Anti-Corruption Law

Introduction: The Global Problem of Grand Corruption

Grand corruption is a serious issue throughout the world that has led to the development of many different laws. The United Nations defines grand corruption as "corruption that pervades the highest levels of a national Government, leading to a broad erosion of confidence in good governance, the rule of law and economic stability" ("United Nations Convention against Corruption"). Grand corruption is such a concerning issue because of the costs associated with this deceptive activity, and eliminating it has become a major quest of NGOs such as the UN.

According to the UN report The Global Programme against Corruption, efforts to raise awareness about corruption have been made since 1994. The report explains that corruption has an insidious nature and can have devastating impacts on entire countries and their citizens: "Corruption not only distorts economic decision-making, it also deters investment, undermines competitiveness and, ultimately, weakens economic growth. Indeed, there is evidence that the social, legal, political and economic aspects of development are all linked, and that corruption in any one sector impedes development in them all" ("The Global Programme against Corruption").

The report also explains that both the public and private sectors have begun to recognize the serious problems that arise as a result of corruption. The consequences include the inability to govern effectively and adverse effects on economic stability and growth. As such, there must be national and international legislation and policies designed to decrease the amount of corruption that occurs. In many nations, legislation addressing such corruption appears to be in its early development, and accurate evaluations about the type and extent of domestic and transnational corruption are difficult to acquire ("The Global Programme against Corruption").

The purpose of this discussion is to determine and evaluate the role of the United Nations, governments, and other organizations in combating the problem of grand corruption throughout the world. More specifically, the investigation focuses on the United Nations Convention Against Corruption (UNCAC), as well as the role of the African Charter, international courts, and the World Bank in curbing corruption.

The UN Convention Against Corruption: Adequacy and Enforcement

The United Nations has attempted to decrease the level of grand corruption throughout the world using several different tactics. These tactics include the development of a code of conduct, the creation of specialized anti-corruption agencies, and the strengthening of governments and judicial institutions throughout the world. In addition, the United Nations Convention Against Corruption (UNCAC) was developed in 2000 with Resolution 55/61. The reason for the development of this convention came when the General Assembly recognized the need for "an effective international legal instrument against corruption, independent of the United Nations Convention against Transnational Organized Crime," and decided to establish an ad hoc committee for the negotiation of such an instrument in Vienna at the headquarters of the United Nations Office on Drugs and Crime ("United Nations Convention against Corruption").

However, there is still a great deal of corruption throughout the world, and questions as to whether the policies of the UN are adequate and provide effective punishment are difficult to answer. On the one hand, some progress has been made in certain countries and with respect to certain types of corruption. On the other hand, the amount of grand corruption in other countries or regions of the world has increased. The primary difficulty associated with the convention involves the way it was drafted and the ability of the UN to enforce certain standards it was intended to address.

Argandona (2007) explains that the convention is a rather limited instrument as a result of the way it was drafted, because it gives priority to economic and political interests as opposed to human interests. One of the most problematic aspects of this drafting is that it does not obligate the signatory countries to make certain actions punishable by law. For instance, acts such as trading in influence, bribery of a foreign official, illicit enrichment, or abuse of public functions are not criminal activities in many of the signatory countries.

A number of provisions contain vague language, such as "shall consider adopting" and "may adopt" as they pertain to certain codes of conduct. In addition, many of the articles contained in the convention consist of safeguard clauses that further reduce the obligations of the states parties if any conflict arises between a state's constitution and the ability of that state to enforce certain laws related to grand corruption. As such, the development of uniform standards to address grand corruption cannot always be achieved because they sometimes conflict with the constitutions of signatory states.

Argandona (2007) asserts that the lack of obligation regarding acts such as bribery is of particular concern because the line between the private and public sector is often blurred in many signatory countries, particularly as it pertains to outsourcing and globalization. When countries do not have laws or enforcement strategies to deal with these activities, corruption in the private sector often becomes prevalent, and such corruption makes it difficult to control corruption in the public sector. Furthermore, the convention does not make it obligatory for corruption within a political party to be punishable by law. The author notes that the whole issue of political corruption is handled in a vague manner throughout the convention, despite the fact that this type of corruption is among the most common and most detrimental.

Argandona (2007) acknowledges that the convention's failure to lay out a clear standard against political corruption is due, in part, to the various ways political campaigns are run in different countries. Instead, "the criminalization of bribery of officials of public international organizations and other related issues was left for discussion by the Conference of the States Parties to the Convention, to be held after the Convention comes into force."

Argandona (2007) also asserts that some articles of the convention are so unclear that they can be interpreted in many different ways, creating a difficult scenario for multinational corporations that operate in different regions of the world. The articles are further problematic because there are no mechanisms in place to penalize States Parties that fail to meet their obligations under the Convention. This results in the dilemma of implementation and enforcement, arising from the absence of monitoring and surveillance mechanisms that are inclusive of representatives of civil society and companies. The author contends that such mechanisms are absolutely essential to guaranteeing the convention's success.

The primary rationale for the use of monitoring mechanisms is to persuade governments to recognize the principles of the Convention and then implement them (Argandona, 2007). This is an essential step because of the various political, social, economic, and technical issues that accompany implementation, including the passage of new laws, the struggle with those who stand to lose from changes in the law, and the staffing and funding of agencies responsible for enforcing the new provisions. The delay in implementing monitoring mechanisms indicates a lack of political will and an unwillingness to fight against corruption (Argandona, 2007).

The monitoring process is essential because it presents a country's government with external accountability through inspections, reports, and discussion sessions (Argandona, 2007). It also provides a forum for governments and pressure groups and permits civil society and the private sector to participate in these tasks (Argandona, 2007; Heimann, 2005a, b). There are other possible short-term advantages, including an enhancement in the value of legislative and institutional change, greater involvement by civil society organizations and NGOs, the documenting of good practices from nations around the world, and the assembly of a body of case law to assist in the reliable interpretation of the Convention.

As Argandona (2007) explains:

"Given the diversity of the parties to the Convention and the attitude of some of them during the negotiations, who argued that the monitoring processes violated their sovereignty, it was particularly difficult to agree on an effective monitoring procedure that was acceptable to all. The task of supervision and monitoring will be carried out, in principle, through the Conference of States Parties to the Convention. The Conference will be held for the first time 'not later than one year following the entry into force of the Convention' (art. 63, 2). One of its tasks will be to 'review periodically the implementation of this Convention by its States Parties.'"

The monitoring process is a long-term program that must be modified to meet the needs of changing situations and the learning processes of the parties (Argandona, 2007). It must possess a high rate of State Party cooperation along with a competent, appropriately resourced Secretariat. It is essential to encourage the compilation and publication of data concerning anti-corruption efforts in various nations in order to promote transparency during different stages of the process. Additionally, sensible restrictions must be established concerning what can be achieved, and the States Parties must create political support for the process while taking advantage of the synergies available through other monitoring instruments (Argandona, 2007).

Grand Corruption as a Crime Against Humanity

Overall, while the intention of the convention was noble, in many cases it is not very effective in curbing grand corruption. This is due to the way it was drafted and the many different types of governments that are party to it. Issues identified as detrimental in one nation may be viewed as completely acceptable in another. With these things understood, it is difficult not only to develop uniform standards against grand corruption, but also to enforce any such standard.

There have been many different assertions concerning certain forms of grand corruption being classified as a crime against humanity. Starr (2007) argues that grand governmental corruption involving the large-scale depletion of treasuries by heads of state should be considered a crime against humanity. The grounds for this can be attributed to the catastrophic and foreseeable consequences of such corruption:

"[Grand governmental corruption] has catastrophic consequences that are foreseeable to the perpetrators: extreme poverty and decimated government services, resulting in widespread deaths from food-borne diseases, water-borne diseases, and HIV/AIDS. International criminal tribunals could contribute meaningfully to the fight against kleptocracy. They have considerable powers to trace, freeze, and seize stolen funds, and can exercise jurisdiction where other domestic or international remedies are unavailable. They might also have a norm-shaping and/or deterrent effect" (Starr 2007, 4).

However, the United Nations and the international tribunals supported by the organization have made it a rarity to target kleptocracy. Starr (2007) explains that such an omission is a travesty and prevents the international justice system from fully protecting the citizens of countries where such corruption occurs. The author also explains that there is a robust legal argument for treating grand corruption as a crime against humanity that would not require the implementation of new treaties. In some situations where consequences are severe and foreseeable, grand corruption could also be placed in the category of "other inhumane acts" — as has been the case under customary international law and under the Rome Statute. The author further explains:

"International criminal tribunals, and particularly the nascent ICC, face serious political obstacles to their effectiveness. They cannot cavalierly add new categories of crimes to their agendas. Instead, they must carefully consider the consequences of their actions for their legitimacy and for states' willingness to cooperate with them. With this in mind, I conclude that crisis-centered strategies in the near-term might help to catalyze international acceptance of new legal principles that could then be applied in other contexts. This has happened historically, for example, with the development of modern international human rights law, which emerged largely in response to World War II and the Holocaust but now systematically regulates the peacetime relationship of governments to their citizens. International criminal law could undergo a similar transformation." (Starr, 2007, 4–5).

Whether some cases of grand corruption will ultimately be labeled crimes against humanity remains to be seen. The lack of specificity within the UN about so many aspects of corruption has long been an impediment to stopping it, and this issue is no exception. The need for tougher laws concerning grand corruption by government officials is definitely an issue that must be addressed by organizations seeking to end corruption and promote peace and health in various countries throughout the world.

The need to severely punish those who commit such crimes is of particular importance in developing countries, which often struggle with education, healthcare, and poverty. As Starr (2007) points out, when government officials raid treasuries and use the money to finance lavish lifestyles, the citizens of the country suffer greatly. In many cases such suffering can lead to death and generational poverty. Much of the money taken by corrupt officials could instead be used to finance hospitals and purchase medication for the sick. In many countries, HIV/AIDS rates are extremely high as government officials squander money that could be used to purchase medicine capable of prolonging many lives. Additionally, the money stolen could be used to improve or create schools for children. Education is vitally important in any context, and in developing countries it is of particular importance because it can determine how quickly a country develops and whether its people will have control over that development. When people are uneducated, they often rely on others to manage their country's development. Education increases the likelihood that a country can control its own destiny and end the cycle of poverty.

Making a designation of grand corruption as a crime against humanity would also serve as a deterrent for other government leaders who might be tempted to act in ways that are destructive and harmful to their countries. In many cases, government officials commit acts of grand corruption because they believe there will be no consequences, or that consequences will not be severe. If grand corruption were treated as a crime against humanity, some leaders might be less likely to engage in it. Such a designation would also set a standard for unacceptable behavior and establish a form of international accountability that is not currently present.

Conclusion

"In many cases, the money illicitly paid to public officials (or managers or employees of private organizations) is sent abroad, resulting in a drain of funds which, in some cases, can seriously affect a country's economic development. Accordingly, the Convention details the conditions, processes and means for those funds to be returned to their countries of origin. This entailed lengthy negotiations, taking into account not only the demands of the countries that sought to recover their assets, but also the legal and procedural safeguards of the countries that had received the funds." (Argandona, 2007).

Argandona (2007) further explains that the fifth chapter of the convention sets forth the process of preventing and detecting transfers of the proceeds of crime through the development of penalties affecting financial institutions and public officials. The convention also establishes measures for the direct recovery of property, methods for the recovery of property via international cooperation, and standards for the return and disposal of assets. In Article 57, the following three situations are identified:

(1) Embezzlement of public funds by a public official who attempts to hide them in another nation. When this occurs, the property belongs to the state and must be returned to the correct owner (Argandona, 2007).

(2) Profits from corruption, or property that was not stolen but obtained illegally and transferred to another country. In this situation, the nation of origin may or may not be the injured party. The Convention declares a standard analogous to that applied to the "confiscation of money from drug trafficking or other crimes: the proceeds of the crime must be returned to the State of origin when said State is able to reasonably establish its prior ownership or when it has suffered damage and is entitled to compensation, always taking into account the rights of bona fide third parties" (Argandona, 2007).

(3) All other instances of confiscation in which the most important deliberation is given to returning confiscated property to the State Party requesting it, to its former lawful owners, or to reimbursing crime victims (Argandona, 2007).

In an effort to recover assets, the World Bank has made steps to be instrumental in the important task of asset recovery, including the development of the Stolen Asset Recovery (StAR) Initiative. The initiative is a partnership between the World Bank and the United Nations Office on Drugs and Crime (UNODC):

"The roles of these institutions will be framed by their respective mandates: in the case of UNODC by its responsibility as the custodian of UNCAC and Secretariat to the Conference of State Parties; and in the case of the WBG, by the recently approved Governance and Anti-Corruption (GAC) strategy, which recognizes the need for global action on stolen asset recovery." ("Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan").

There are three objectives associated with this partnership. First, the initiative aims to utilize the convening power of both institutions to improve support between developed and developing countries and to encourage all nations to sanction and implement UNCAC, in close partnership with other agencies working on related topics. Second, it seeks to develop partnerships aimed at enhancing legislative, investigative, judicial, and enforcement capacity in developing countries, allowing them to effectively recover stolen assets held domestically or abroad while discouraging new flows of stolen assets. Third, the initiative focuses on assisting concerned developing countries — when voluntarily agreed within the legal framework of UNCAC — in monitoring the use of recovered assets. Even though UNCAC has established that recovered assets should be returned to rightful owners, in some instances efforts at recovery could be improved through deliberate monitoring agreements to guarantee that recovered assets are used for developmental purposes ("Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan").

As the initiative documents explain: "WBG's experience with public expenditure tracking can be put to use in helping monitor the use of recovered assets, at the election of the country in question. A StAR role for the WBG would thus be an integral part of its Governance and Anti-Corruption (GAC) Strategy, with its focus on financial sector governance, transparent and sound public financial management, global collective action, and the deterrence of corruption by public officials." ("Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan").

The World Bank is therefore an organization that could be actively involved in the recovery of assets. The World Bank recognizes the role it could play in curbing corruption and has developed a comprehensive program to address this very issue.

The purpose of this discussion was to establish and evaluate the role of the United Nations, governments, and other organizations in combating the problem of grand corruption throughout the world. The investigation focused on the United Nations Convention Against Corruption (UNCAC), the role of the African Charter, international courts, and the World Bank in curbing corruption, and why grand corruption is so detrimental to nations around the world.

Overall, the investigation demonstrates that some comprehensive efforts have been created to reduce grand corruption. Some efforts have been more successful than others, and there is a great deal of difficulty in getting various countries to conform to a single standard when it comes to penalizing grand corruption. As such, this problem will likely persist for years to come. Continued development of enforcement mechanisms, stronger monitoring procedures, and greater international cooperation — including through vehicles such as the World Bank's StAR Initiative and the potential expansion of international criminal court jurisdiction — will be essential if the international community is to make meaningful progress against one of the most damaging forms of governance failure in the modern world.