Medium Op-ed: The Corruption Conundrum: The Absence of Corruption from the UK and EU Global Human Rights Sanctions Regimes

Note: This op-ed originally appeared on Medium and was written by Oliver Windridge, Senior Advisor for The Sentry to the UK.

 

The United States and Canada have thematic sanctions programs—often referred to as Magnitsky regimes—that target human rights abusers and those involved in corruption. These programs allow for asset freezes and travel bans on designated persons and entities, and they are the forerunners of a global movement of thematic, rather than country-specific, sanctions programs being launched to tackle illicit actors. The United Kingdom and the European Union joined this global movement in 2020, adding their own Global Human Rights Sanctions programs in July and December respectively. While all these sanctions programs differ slightly, the UK and EU programs do not include corruption within their scope, unlike the programs in the US and Canada. Instead, they focus only on sanctioning individuals and entities for human rights violations.

This omission begs the question: if the UK and EU have signed up to the use of thematic sanctions regimes, why didn’t they go all the way and include corruption like the US and Canada? The reasons are likely myriad, but two in particular may shed significant light on this seeming divergence.

Reason 1: While human rights violations are comparatively easy to identify, corruption is not.

 

There are many international human rights instruments: the Universal Declaration of Human Rights (UNDHR), the International Convention on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention on Human Rights. In any one of these instruments, rights are clearly set out. Take, for example, the prohibition on torture, which is included in the UDHR, the ICCPR, the African Charter, the American Charter, and the European Convention, as well as in its own instrument, the UN Convention Against Torture (UNCAT). Article 1 of the UNCAT provides a lengthy, detailed definition of what torture is.

What’s more, the prohibition on torture has also been subject to decades of litigation before multiple international courts and bodies. For instance, a quick search on the European Court on Human Rights case-law analyser for Article 3 (Prohibition on Torture) bring up over 10,000 results. These thousands of cases, alongside state practice and policy, help establish and continually test the boundaries of what torture is (or is not) under international human rights law. For policymakers considering thematic sanctions, the definitions found in human rights instruments and international case law assist at the legal level in determining whether conduct amounts to torture, and on a more general policy level, the clear international condemnation of torture makes evident that it should fall within the jurisdiction of a human rights sanctions program.

The UN Convention Against Corruption (UNCAC), the leading international anti-corruption treaty, does not offer the same clarity, however. Ratification of the UNCAC, like the UNCAT, is almost universal, but it contains no definition of corruption. Additionally, the UNCAC does not explicitly set out the need to criminalize corruption, per se. Instead, in articles 15 through 25, it sets out 11 crimes that should be criminalized: “bribery of national public officials;” “bribery of foreign public officials and officials of public international organizations;” “embezzlement, misappropriation or other diversion of property by a public official;” “trading in influence;” “abuse of functions;” “illicit enrichment;” “bribery in the private sector;” “embezzlement of property in the private sector;” “laundering of proceeds of crime;” “concealment;” and “obstruction of justice.” These 11 crimes can be seen as the ingredients used to create corruption under the UNCAC, meaning that state parties do not need to have a single crime of corruption in their domestic legislation, but rather up to 11 crimes that together capture corruption.

For this reason, the corruption landscape can seem opaque, particularly when compared with human rights. Look, for example, at recent reporting on the conviction of Israeli mining magnate Beny Steinmetz in Switzerland. The Guardian headline reads, “Israeli minerals magnate Beny Steinmetz convicted of corruption,” but what Steinmetz was actually convicted of was bribery and the forging of documents. This divergence—between the concept of corruption and the reality of pursuing accountability for corruption via the more specific sub-crimes—can make the application of corruption to sanctions programs more difficult than human rights violations.  It is worth noting that the application of sanctions for human rights programs is for the violation of rights within international human rights law, as opposed to crimes within the UNCAC corruption landscape. This difference is slight but may become more important if and when corruption joins human rights within the EU and UK programs.

This opacity is not helped by a lack of consistent, long-term legal analysis of corruption at the international, regional, and domestic levels. Put simply, corruption (either as an apex offence or manifested as one of the 11 UNCAC sub-crimes) has not been litigated before international bodies in the same way that human rights have. This is partly due to the divestiture of corruption within the UNCAC, but it can also be attributed to the lack of an international platform on which to consider corruption cases and the slow political will to tackle the issue in the same way as human rights. As a result, policymakers considering corruption sanctions cannot open up a rich and well-established set of case law, state practice, and international instruments the way they can when considering human rights.

The absence of political will, though, is a crucial issue that raises its own question: if human rights abuses are always wrong, can the same be said of corruption?

Reason 2: Corruption has an image problem.

 

Not only is corruption hard to identify and, in some ways, difficult to visualize, it can sometimes be perceived by policymakers and the international community as being less serious than human rights violations. Often corruption is seen as a domestic issue, and therefore something that should be dealt with in-house, beyond the scrutiny of the international community. Corruption may also be viewed as being the small-time bribes needed to get by in some countries, or even as being attached to moderate levels of power—a local councillor giving preferential treatment to a family member for a public works contract, for instance. While these incidences are corruption and are obviously wrong, do they necessitate intervention from a foreign government or regional body in the form of sanctions?

Looking at current corruption sanctions programs, as in the US and Canada, these minor types of corruption are unlikely to meet the standard required for sanctions. Corruption within current sanctions programs is really looking at grand or serious corruption, which, at its heart, is financial theft either directly from state funds via commissions on public contracts or through other means. This theft often affects millions through the loss of public revenues that could go toward supporting and improving the lives of some of the most vulnerable populations in the world. For example, the US Department of the Treasury imposed sanctions on Israeli mining tycoon Dan Gertler, who “amassed his fortune through hundreds of millions of dollars’ worth of opaque and corrupt mining and oil deals in the DRC,” resulting in a loss of over $1.3 billion in revenue for the country between 2010 and 2012 alone. While this example and other similar cases could never be considered minor incidents of corruption, the lack of universal definition on the term demonstrates again the challenges that corruption sanctions present. However, when money is the common driver, sanctions—such as freezing the assets bought from corruption and preventing travel to desirable destinations where corrupt funds can be spent—can be very effective.

It is worth noting corruption rarely occurs in a vacuum but instead is almost always linked to human rights violations, if not directly, then through the erosion of the rule of law and democratic norms. Put simply, a vicious cycle exists: corrupt officials are less likely to willingly uphold human rights standards, and those willing to deny or even outright abuse peoples’ rights are unlikely comply with honest, open, and transparent government, especially when there are millions to be made.

The case for adding corruption to sanctions programs.

 

If corruption is acknowledged as an opaque concept, lacking anything like the level of legal and policy analysis that human rights has enjoyed, its impact underrecognized, why push to add it to sanctions programs? First, as discussed, corruption almost always has a financial element, which means that sanctions can be an impressively effective tool, targeting the very fuel for the crime itself: money.

Add to that the link between corruption and human rights abuses. Corruption provides fertile conditions for damage to and, in some cases, outright destruction of the rule of law that underpins human rights standards. In some instances, this can lead to conflict, with money being plundered both to enrich leaders and to fund the conflict, for instance by buying weapons or funding security services, which in turn provides cover and opportunity for further plundering. It is this link between corruption and human rights violations, as well as the clear financial elements of corruption, that illustrate why adding corruption to existing human rights programs or as a stand-alone thematic program is so important. It provides the tools to get to the root of the issue.

The UK and EU should add corruption to their existing sanctions programs or create new corruption sanctions programs, and a recently launched report from the UK government suggests that they may be doing just that. They should look to sanction individuals, entities, and their networks of enablers whose corrupt profits so often end up in the UK or EU. Corruption-based sanctions deter corrupt conduct by blocking off a lucrative and desirable avenue for those funds, they encourage changes in behavior, and they get to the root cause of conflict and human rights abuses around the world. Undoubtedly, sanctions for corruption bring up unique issues, some of which are not easily solved by simply transferring approaches to human rights abuses across, but these issues are worth solving urgently.