UN & grand corruption: Time to break out of silos
The UN Crime Commission should support creation of an expert group for joint work
Panama City, Panama – Anti-corruption protest, 20 August 2019. Photo: Lourdes Quintero/Shutterstock
The UN Convention against Corruption (UNCAC) turns 20 next year. It was a landmark achievement when adopted and, together with its peer review mechanism, has triggered anti-corruption laws around the world. However, critical weaknesses and gaps remain.
In particular, the international community must do more to collectively address the type of corruption that results in widespread harm – the large-scale cases involving high-level officials. From Brazil to the Gambia, from Malaysia to Mozambique, cases of corruption involving “vast quantities of assets” have exposed gaps in legal frameworks and shortcomings in enforcement that allow grand corruption to flourish.
The UN recently acknowledged the need to tackle pervasive organised corruption networks, which often include politicians, civil servants, private sector and members of crime syndicates. It has also pointed to the terrible consequences of such complex, multi-jurisdictional corruption – including poverty and conflict. In other words, where there is grand corruption, funds that could be used for health, education, public transport, social programmes and other benefits to improve people’s lives are siphoned off into the bank accounts of criminal elites.
Hyena charts the epic levels of corruption undertaken by the Yahya Jammeh regime in The Gambia, which is estimated to have stolen almost US$1 billion of public funds from the smallest country in mainland Africa. This short documentary was planned, filmed and directed by a group of 11 Gambian citizens - drawn from communities across the country - during a Participatory Video project in July 2019.
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Despite the devastating impact, grand corruption perpetrators often escape punishment, while the victims are denied remedies. This is because the perpetrators have the power and influence to thwart effective domestic legal frameworks and their application, while other jurisdictions do not make up for the inaction.
Last year’s first-ever UN General Assembly Special Session (UNGASS) against Corruption offered some hope that UN bodies will start tackling grand corruption head-on. Transparency International and our partners pushed for the creation of an expert working group to prepare concrete proposals for new frameworks and mechanisms to address gaps in the UNCAC. Civil society’s calls were not heeded. Although the UNGASS 2021 political declaration recognises that there may be gaps yet to be covered in the international anti-corruption framework, it falls short of tasking a dedicated working group with drawing up solutions and only requests that the UNCAC Conference of States Parties (CoSP) address them – some time in the future.
The session of the UN Commission on Crime Prevention and Criminal Justice meeting this month in Vienna offers another opportunity to make the proposed expert group happen as well as to increase coordination among relevant UN treaty bodies.
Impunity for grand corruption remained a subject too taboo even to mention in the UNGASS declaration, and that was one of its greatest failings. However, it is not the last word on the issue.
Coordinate work on UNCAC with other international agreements
UNCAC is rightfully lauded as the most comprehensive global anti-corruption agreement. While its potential for addressing grand corruption has not been fully exploited – such as its provision for the exercise of universal jurisdiction where there are jurisdictional gaps relating to serious crimes – it is important to recognise that the national measures required by UNCAC do not go far enough in addressing grand corruption. Better results could be achieved through a joined-up anti-corruption approach that combines UNCAC measures with those required under the UN Convention on Transnational Organized Crime (UNTOC) and under relevant human rights instruments. So, a first step should be greater coordination between the UNCAC CoSP and other relevant UN bodies.
The UNTOC should be seen to supplement UNCAC, with some obligations that are potentially stronger as to the transnational, networked, organised aspects of grand corruption. The two conventions overlap on subjects like bribery, money laundering and international cooperation and are complementary in other areas. For example, UNTOC includes useful complementary measures on the misuse of companies, the role of private sector intermediaries in cross-border crime and compensation of victims. These elements should be included in designing, implementing and monitoring national anti-corruption frameworks. Thus, coordination of UNCAC and UNTOC work through joint meetings of their Conferences, working groups and implementation review mechanisms would make for stronger national measures against grand corruption.
Transparency International and the Global Initiative against Transnational Organized Crime called for a more networked, strategic response to transnational organised corruption in a submission to the 9th Session of the UNCAC CoSP.
Similarly, human rights instruments such as the two International Covenants – on Civil and Political Rights, and on Economic, Social and Cultural Rights – contain components missing from UNCAC that are relevant for addressing grand corruption. The Human Rights Council’s 2021 resolution on corruption and human rights identified as essential anti-corruption elements “good governance, democracy and the rule of law and the promotion and protection of human rights and fundamental freedoms, including the right to seek, receive and impart information, the right to take part in the conduct of public affairs and the right to a fair trial before a competent, independent and impartial court, established by law.” These elements are not spelled out in UNCAC and should also be included b designing, implementing and monitoring national anti-corruption frameworks. Coordination between UNCAC and UN human rights bodies and their monitoring processes would help ensure that these elements are considered in assessing national anti-corruption efforts.
Furthermore, in view of the serious and widespread negative human rights impacts of grand corruption, national anti-corruption frameworks should include remedies for those impacts, that take into account country commitments spelled out in the 2030 Agenda for Sustainable Development.
UN discussions and monitoring of international frameworks and obligations relevant for national anti-corruption efforts are, for the most part, conducted in silos. Bringing these frameworks together would help to improve national efforts to tackle grand corruption and the harm it causes. It would also enable better identification of weaknesses and gaps in the international framework.
Following up on the UNGASS political declaration
Efforts against grand corruption could also be improved through robust follow-up to the UNGASS 2021 political declaration. That declaration includes UN member state commitments to free and fair elections, participatory decision-making at the national level, parliamentary oversight of budgets and protection of journalists – these are commitments that are not found in the UNCAC. It also includes commitments on beneficial ownership transparency, financial declarations of public officials and non-conviction-based confiscation, to name a few. But the declaration does not establish a formal follow-up process relying on the UNCAC CoSP to handle the next steps.
A 2021 resolution of the 9th Conference of States Parties (CoSP) to the UNCAC says that CoSP subsidiary bodies should follow up on the UNGASS declaration – it does not, however, specify how that should happen. The text also calls for an intersessional meeting on the declaration and for voluntary submissions by States Parties on their implementation of the UNCAC and the political declaration. The resolution fails to establish a monitoring process for the declaration, which would incentivise signatories to honour their UNGASS commitments.
As for the gaps and challenges remaining in the international anti-corruption framework, we may see the UNGASS declaration prompt efforts to address them some time in the future. In the meantime, preparatory work should begin on how to better tackle grand corruption given the urgency and complexity of the challenge.
Transparency International recommended steps to improve the international legal framework and infrastructure for sanctioning grand corruption in our submission to UNGASS 2021.
The grand corruption agenda
Even increased coordination and more robust UNGASS follow-up would not do enough to ensure the rapid progress needed to overcome widespread impunity for grand corruption crimes.
To develop more comprehensive and effective solutions, a UN expert working group should be established to bring together specialists from the UN bodies and offices overseeing all relevant agreements, along with experts from civil society, private sector and academia. It should follow up on the recommendations of the Oslo statement by a UN expert meeting in 2019 – and go beyond it.
In particular, the working group should consider a new framework for criminalisation of grand corruption and articulation of special national procedural measures applicable in such cases. For example, the exercise of universal jurisdiction would be key in grand corruption cases to overcome jurisdictional gaps resulting from perpetrators thwarting domestic enforcement. Provision could also be made for lifting immunities, unlimited statutes of limitation, legal presumptions, remedies for broad classes of victims as well as special arrangements for international asset recovery and return.
The working group should liaise with the Sixth Committee’s working group on universal jurisdiction, ongoing since 2009, and the work of the International Law Commission on immunity of state officials from foreign criminal jurisdiction, ongoing since 2006. Consideration should be given to how to link up with the global coordination mechanism proposed by the FACTI Panel last year to address illicit financial flows.
Other innovative solutions, including supranational structures and mechanisms – such as those mentioned in the UN Common Position and Transparency International’s submission to the UNGASS – should also be considered as part of the joint work.
UN member states can be surprisingly innovative when narrow interests do not interfere with achieving a consensus.
An example is the resolution on combatting corruption in times of crisis and emergency adopted at the 9th UNCAC Conference of States Parties in December 2021 as a response to the experience of the COVID-19 pandemic. This includes notable new language calling on states to investigate and prosecute UNCAC offences “that result in unfair commercial practices, such as price gouging and the manipulation of prices of essential goods and services or bids, especially those needed to respond during times of emergencies and crisis”.
Establishing this type of links between corruption and its impacts is important in the grand corruption debate.
What should the UN do in 2022?
A diverse group of states has argued for years that nothing should change in UN anti-corruption frameworks and processes until the UNCAC has been implemented.
However, in many countries grand corruption perpetrators ensure that UNCAC is not implemented – whether through the necessary legal frameworks or through their application and enforcement. The widespread harm continues unchecked.
It’s time to accelerate the development of new and more effective approaches to tackling impunity for grand corruption. This can be achieved through stepping up coordination between UNCAC and other UN frameworks and introducing serious follow-up to the UNGASS 2021 political declaration
The upcoming UN Crime Commission meeting in Vienna, taking place on 16-20 May 2022, should start work on strengthening coordination between UN bodies working on corruption, organised crime and human rights as well as add the UNGASS political declaration to the agenda for its meetings.
It should also work with other UN bodies to establish an intergovernmental expert working group on grand corruption, as the joint letter from non-governmental organisations to UN member states ahead of the UNGASS proposed. The UN Secretary General’s Office and the UN Secretariat’s Global Corruption Task Force should help advance this process.
It’s long overdue for UN member states and the UN Secretariat to take a comprehensive and joined-up approach to preventing and combating grand corruption.
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