…but the greatest of these is corruption!

Most of the ills of society are caused by corruption. Corruption in a broad sense, it is true, but still corruption. The Holocaust was corruption in a genocidal form, elite corruption in North Korea has given birth to its nuclear threat, and the poverty in Africa is, in so many ways, a result of corruption. The crisis in Ukraine has been exacerbated by corruption, and China’s amazing rise is gravely endangered by economic and political corruption. Corruption is both a cause and a tragic accompaniment of the Syrian exodus.  Whenever greed and envy get the upper hand, corruption finds its mate!

But let us not despair – let us look at what can be practically achieved. Doing so, we should be ambitious, but not so ambitious as to necessarily fail. In his great book, The Idea of Justice, Amartya Sen argues for practical justice in the sense of doing what most people can agree is right in a specific situation. Better this than to always strive for an abstract ideal on which no consensus can be found and which therefore stands in the way of progress. If we follow this wise advice we should probably first look at what the legal system can be made to achieve in terms of fighting corruption. And this necessitates looking at corruption in the narrower meaning of trading illegitimate favours against monetary gain.

You may well argue that national legal systems have already, over centuries, demonstrated that they cannot be an effective remedy against economic corruption. Societies are woefully unable to fight corruption because those who should are those already carrying the black mark of the disease. Societies are unable to fight corruption because national societies are seen as individual bubbles shielded by sovereignty from interference by global society. Sovereignty, which was intended to ensure freedom for populations, has in many poverty stricken regions been turned into a tool for national elites to enslave the common person of the nations they have been given responsibility for. Global elites stand idly by, either because they themselves are rapacious, or because they hail the ideal of sovereignty without wanting to see where practically it takes many of the populations it was supposed to benefit. There is very little consolation for the starving child in being exploited by a national elite rather than by foreigners. This is the reality we refuse to see, or which we refuse to take action against!

But we could take action, and, in principle, it is easy, even if, in practice, it might be hard. All countries in the world have laws prohibiting corruption. This is surely true even for North Korea! This means that everybody engaging in corruption is clear on the fact that he or she engages in a crime. The feeling of impunity comes from the assumption that the corruption laws cannot be enforced. The most sacred principle of criminal lawyers is nullum crime sine lege, no crime without a corresponding law. Yet, criminal lawyers can sleep easily, because the law is there – corruption is not just an ethical infraction.

There is no equally sacred principle in criminal law giving the criminal a right to be judged only by a court of his or her own nationality. And herein lies opportunity!

The opportunity might not be so big as to assume that every state can punish any act of corruption no matter where and by whom it is committed. This kind of universal jurisdiction could set the stage for a hijacking of the corruption agenda for national rivalry purposes and could be abused by publicity seeking lawyers. Recent attempts at using universal jurisdiction to prosecute the most severe human rights violations have come to grief and in any event such an expansive view of jurisdiction would ignore the admonition of Amartya Sen to seek first and foremost realisable justice.

So what is realisable? The UN Security Council has in the past used its powers to set up tribunals to punish war crimes in the former Yugoslavia and acts of genocide in Rwanda and Cambodia. Yet, sadly, when you look at the membership of the Security Council it is clear that no similar action can be expected for corruption. There is no Security Council backed International Corruption Tribunal in the horizon. The Sen test of practicability cannot be passed.

What we can do, however, is to create an international protocol on corruption enforcement which countries of good will can sign up for. By doing so they would accept that violations of their own anti-corruption legislation can be prosecuted before an international tribunal when national enforcement is found by an international prosecutor to be deficient. This would be similar to the system of the International Criminal Court in The Hague, except that the system would be simpler, because the crimes that would be prosecuted would not need to be defined anew. The international tribunal would just give effect to the law that would apply to the crime in any event.

Perhaps only few states would sign up at the start, but often the best international governance systems are the result of a gradual recognition that something effective will have to be done to combat a societal ill. At the start there might be few – but at the end there might be many, just because the solution comes to be recognised as right and effective.

The corruption disease attacks most severely weak, poverty stricken countries with poor governance systems. Yet, if wealthy, strong states do not show the way and renounce this particular devil and all his works then surely he will continue his rule! In the final analysis nobody is served by that – not even the corrupt!

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