Corruption is a blight that tears at societies across the world year after year, with a marked effect on the finances of both companies and the state. The word comes from the Latin corruptio, meaning alteration, or the process or effect of corrupting or spoiling — in a general sense, bribery. And although the word points towards a definition, how it should be conceived remains a matter of doctrinal dispute.
For Professor Fabián Caparrós (2004, pp. 227–239), corruption consists in the “use of public means for private ends, whereby resources are diverted from the general to the particular, the harm being collective and diffuse”1. In that sense the concept is a broad one, covering the various ways in which a public official may divert resources: fraud and bribery, as well as influence peddling, the buying and selling of judicial rulings, and others besides.
Cases of corruption involving political leaders, business people and private individuals are rising at a dizzying rate — people who knowingly divert public or private resources to themselves, or use them to carry out atrocities, whether or not those are defined as crimes by the Rome Statute. With the conduct of serving and former officials in mind, GOPAC (2013, p. 3) uses the term grand corruption, which it defines as follows:
“In a broad sense of the term, grand corruption goes beyond ordinary corruption and occurs on a larger scale. It differs from ordinary corruption both in the scale of its effects and in the way it operates. Grand corruption takes place in the upper reaches of the political system, when ‘politicians and state agents entitled to make and enforce the laws in the name of the people are using this authority to sustain their power, status and wealth’. In essence, grand corruption violates not only national law but, more seriously still, distorts and undermines the rule of law itself. Grand corruption is systemic, having become an essential feature of the economic, social and political systems themselves and of the political systems whose duty it is to combat it.”
It is crucial that citizens exercise their right of scrutiny, so as to prevent irregularities such as the misuse of public funds. Doing so also makes it harder for companies to strike deals with corrupt politicians, and helps social responsibility take hold.
Against that background, and with the aim of combating this startling crime, a number of international instruments set out to codify corruption: the United Nations Convention against Corruption, adopted by the UN General Assembly in 2003 and in force since 14 December 2005; the Inter-American Convention against Corruption, signed on 29 March 1996 (OAS); and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 1997.
There is little doubt that, over the years, grand corruption has come to be seen as deserving the same priority as international crimes, given the devastation it can cause. A number of jurists and legal scholars came to argue that grand corruption should be treated as an international crime on a par with crimes against humanity and genocide. Crimes against humanity and genocide are, as is well known, international crimes likewise defined by the Rome Statute — crimes which, in many instances, and war crimes with them, are planned, carried out and financed on the back of public funds obtained unlawfully through corruption.
It is worth recalling what the Global Organization of Parliamentarians Against Corruption (GOPAC, 2013, p. 7) says about treating it as a crime against humanity:
“There may be sufficient justification for prosecuting grand corruption as a crime against humanity under article 7(1)(k) of the Rome Statute, if grand corruption is defined in such a way as to make explicit that it is restricted to acts against humanity causing ‘great suffering, or serious injury to body or to mental or physical health’. There is, however, a concern that equating corruption with crimes against humanity may not be reasonable, since the devastation corruption causes is not as evident as it is in cases of genocide or slavery. Widening the scope of ‘other acts against humanity’ to include corruption might encourage political actors to stretch the definition further still, so as to settle scores through the ICC. Moreover, offences of grand corruption are not necessarily committed as part of a widespread or systematic attack against a civilian population. And while grand corruption might meet the current actus reus test for crimes against humanity, the clear mens rea intention of ultimately destroying part of a population is not normally present.”
Grand corruption should be codified as a category of its own — that is, as an international crime under the terms of the Rome Statute, distinct from crimes against humanity, war crimes and genocide. It should also be regarded as the parent cell of the others, since crimes such as those of war are generally financed through money laundering and the facilitation of terrorism. Once defined by the Rome Statute, the International Criminal Court could then act where a state proves inert or where domestic remedies are exhausted, as could domestic or regional courts under the principle of universal jurisdiction.
The fine line between the offences codified by the Rome Statute does nothing to diminish the importance of grand corruption. It should be qualified and recognised internationally as falling within the jurisdiction of the ICC. Failing that, the case only grows for treating it as an exception to immunity from foreign criminal jurisdiction, so that heads and former heads of state can be held to account.
1 SAVONA, Ernesto U., and MEZZANOTE, Laura: La Corruzione in Europa, Carocci Editore, Rome, 1998, p. 19.
By Dr Débora Sinflorio, PhD in Law (Administration, Public Finance and Justice in the Social State) from the University of Salamanca. Human rights advocate with the NGO Centro por la Justicia and with the Red Cross. Lecturer at CMI Business School.
