Introduction

There is no universally agreed definition of grand corruption, but international organisations, NGOs, policymakers and scholars have sought to develop a better understanding of this phenomenon. There is some consensus, for example, on the components of grand corruption such as the abuse of high-level power, the involvement of large sums of money and profoundly harmful consequences to society (Duri 2020, p. 1).

While the United Nations Convention against Corruption does not mention this expression, in its preamble, it signals its concern with “cases of corruption that involve vast quantities of assets, which may constitute a substantial proportion of States, and threaten the political stability and sustainable development of those States”.

The United Nations’ (2004) Practical Anti-Corruption Measures for Prosecutors and Investigators has referred to it as “corruption that pervades the highest levels of government, engendering major abuses of power” associated with the erosion of the rule of law, economic stability and confidence in good governance.

Transparency International (2023a) has defined grand corruption as “the abuse of high-level power that benefits the few at the expense of the many and causes serious and widespread harm to individuals and society”, noting that it often goes unpunished. More specifically, Transparency International proposed the following legal definition for grand corruption:

Impunity is a central element of grand corruption, not only because it often follows grand corruption but because it allows for corruption schemes to be perpetuated. More broadly, the lack of punishment for perpetrators serves as encouragement for others to engage in similar misconduct. It also means that the rights of victims continue to be violated with little prospect of reparation.

The United Nations Human Rights Commission (2005) has defined impunity as:

Countering impunity has long been a concern for the international community. In 1997, the UN Commission on Human Rights adopted the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. They revolved around (i) the right to know; (ii) the right to justice; and (iii) the right to reparation. In 2005, these principles were updated and further detailed, now comprising 38 principles that serve as guidelines for states to develop effective measures for countering impunity (UN Commission on Human Rights 2005).

As noted by Dell (2023), “impunity for grand corruption occurs where jurisdictions are unwilling or unable to prevent, detect and enforce against it.” This can occur for a wide variety of reasons, including a lack of resources, different criminal policy priorities, various forms of undue influence and corruption, or captured institutions that block investigations and prosecutions (Foldes & Amin 2023).

More broadly, weak legal frameworks and inadequate government oversight are elements that contribute to impunity, as are the lack of independence of the courts and the lack of autonomy of prosecutorial authorities. Other obstacles include statutes of limitations that restrict law enforcement’s ability to investigate and prosecute corruption offences and the immunities often granted to high-level public officials (Dell 2023, p. 11).

Main pathway to address impunity

Prosecuting corruption offences in the countries in which they were committed is generally considered the “primary” pathway to address impunity. Usually, grand corruption crosses borders because of foreign bribery, complex money laundering schemes or opaque corporate structures, among other reasons. As such, many countries can often exert jurisdiction over different aspects of a case based on territorial jurisdiction.

Territorial jurisdiction is the most conventional and common basis for jurisdiction. This refers to circumstances in which a state asserts jurisdiction over an alleged offence, given it was committed within its territory (International Association of Prosecutors 2013, p. 17). The UNCAC determines that states parties must establish jurisdiction over offences committed in their territory (art. 42, par. 1). Other bases for jurisdiction are mentioned as possibilities or recommendations, not requirements (art. 42, par. 2).

This is not to say that criminal prosecution by law enforcement authorities in the jurisdiction where the offence was committed is the only or best avenue to ensure that grand corruption does not go unpunished or that victims receive adequate reparation. The benefits and disadvantages of other pathways to address impunity are discussed below.

The goal of this answer is not to analyse the obstacles to the “primary” pathway to successfully holding perpetrators of grand corruption to account. Rather, given these obstacles, this paper presents alternative options to overcome the impunity that perpetrators of grand corruption tend to enjoy.

Alternative pathways to address impunity through criminal prosecution

In this section, various alternatives to criminally prosecute perpetrators of grand corruption are discussed. No alternative is without its limitations, and many of the obstacles mentioned above also apply to them. The actual possibility of resorting to these alternatives varies significantly and some of them – the international criminal courts, for example – require certain reforms to be able to effectively address grand corruption.

International criminal courts

It has been recognised that international and internationalised criminal courts may “exercise concurrent jurisdiction when national courts cannot offer satisfactory guarantees of independence and impartiality or are materially unable or unwilling to conduct effective investigations or prosecutions” (UN Commission on Human Rights 2005).

Since the end of the Second World War, international criminal courts have been deployed in different circumstances as a tool to curb gross human rights violations. In addition to the courts created after WWII, ad hoctribunals were established in the 1990s to respond to the gross human rights violations in Rwanda and former Yugoslavia.

After the experience of these ad hoccourts, the international community established a permanent court to deal with breaches of international law: the International Criminal Court (ICC). Based on the Rome Statute, the ICC has jurisdiction over genocide, crimes against humanity, war crimes and crimes of aggression.7df2322ca6e2

While none of these courts have explicit jurisdiction over corruption offences, instances of bribery have been mentioned in some cases as part of a prosecutor’s case. In situations of gross human rights violations by public officials, it may be difficult to define what constitutes an abuse of entrusted power.

Some scholars have advocated for an interpretation of “crimes against humanity” that includes grand corruption, which would open a path towards the ICC directly handling such cases (Barkhouse 2017; Kenney 2017). Others have noted that elements related to grand corruption are intrinsically linked to human rights violations, so they must be considered jointly (Roth-Arriaza & Martínez 2019).

Besides international courts, the past decades also saw the emergence of internationalised courts(or hybrid criminal courts) in Sierra Leone, Cambodia, Lebanon, Timor-Leste and Kosovo. While these courts have different institutional designs and mandates, they have been defined as “courts of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred”. They have been mainly deployed to post-conflict scenarios to strengthen the rule of law and to investigate human rights violations (United Nations 2008, p. 1).

Concerned with the issue of impunity in grand corruption cases, some scholars, policymakers and even states have argued for the creation of an International Anti-Corruption Court (IACC). Modelled on the ICC, the IACC would have jurisdiction over corruption related offences listed in the UNCAC committed by high-level public officials. Working on the principle of complementarity, it would only have jurisdiction over cases in which national governments were unwilling or unable to investigate and prosecute perpetrators of corruption schemes (Wolf, Goldstone & Rotberg 2022).

The main advantages of an IACC, according to its advocates, include the prospect that it would provide a forum removed from direct political interference to prosecute and punish kleptocrats, and deter future malfeasance by establishing a credible threat of prosecution. It could also facilitate the recovery and repatriation of stolen assets, and its expert investigators, prosecutors and judges would be able to support and advise their national counterparts on anti-corruption enforcement efforts (Integrity Initiatives International 2023).

There are, however, significant concerns about the political viability of such a court since corrupt leaders would be very unlikely to support the accession of their countries. Stephenson and Schütte (2019, p. 5-6) have also noted other potential issues, such as the opportunity costs of creating and operating a complex international court.

In 2018, scholars and CSOs proposed the creation of a Criminal Court against Organized Crime in Latin America and the Caribbean, and its jurisdiction would also include corruption and money laundering (Ryngaert 2022, p 8).

Criminal prosecution in an alternative jurisdiction

If criminal prosecution does not progress in one of the countries where the corruption offences were committed, international law recognises the possibility of extraterritorial enforcement action. Given that grand corruption cases usually cross borders, it may be possible to find other countries with jurisdiction over some aspects of the case (Foldes & Amin 2023, p. 5).

There are four different legal bases whereby a state can establish criminal jurisdiction over corruption related offences even if they were not committed in its territory. The UNCAC expressly invites states parties to establish jurisdiction on the basis of passive personality (art. 42, par. 2, point [a]) and active personality (art. 42, par. 2, point [b]).3e15a4d420f1 It also recommends that states invoke (iii) the protective principle to establish jurisdiction over cases in which the state or its interests suffered some form of harm (art. 42, par. 2, point [d]).

Lastly, (iv) universal jurisdiction may be adopted, allowing a country to proceed with the criminal prosecution of offenders even if there is no immediate connection between the crime committed and the prosecuting state. Macedo (2001, p. 28) has defined universal jurisdiction as a

Given this extremely wide basis, in some countries it remains controversial and restricted to a narrow set of heinous crimes, such as genocide and war crimes (International Association of Prosecutors 2013, p. 20).

The UNCAC does make it clear that its list of bases for jurisdiction is not exhaustive and countries may assert jurisdiction for other reasons (art. 45, par. 6). A significant number of countries have reported to the UN secretary-general that they have adopted universal jurisdiction for different types of crimes beyond that narrow set of extremely grave human rights violations. Significantly, both Armenia and Costa Rica have declared that corruption related offences may fall within their jurisdiction due to universal jurisdiction provisions (United Nations 2022).

TRIAL International, along with Civitas Maxima, the Center for Justice and Accountability, the European Center for Constitutional and Human Rights, the International Federation for Human Rights and REDRESS (2023) monitor cases around the world in which universal jurisdiction serves as the basis for prosecution and judgement. No cases of individuals being directly charged for corruption were found in its database, though some do mention either the payment of bribes as part of the case’s context or the commission of crimes against individuals who reported corruption schemes. Transparency International has called on countries to establish universal jurisdiction over grand corruption (Dell 2022).

Although prosecuting corruption offences in alternative jurisdictions removes some of the obstacles to enforcement proceedings, other issues may arise. For example, obtaining evidence about a crime committed in another country, especially when the government of that country is unwilling to collaborate, is costly and time consuming. Often third jurisdictions through which dirty money flows are also unwilling to collaborate. This is especially concerning given that grand corruption cases usually involve intricate financial structures and generate wide ranging impacts that must be adequately assessed. Enforcement of convictions will also depend on the availability of extradition procedures if the alleged offender is not in the territory of the country responsible for the trial.6b5d403a3b77

There are also different ways victims can participate in criminal proceedings led by prosecutors. They may be granted the right to be represented by a lawyer, to pose questions to witnesses and to the accused parties, and to make initial and closing statements. Participation usually entails the right to access information about the case that may otherwise be deemed secret. In countries of French legal tradition, this is recognised as the role of the “civile partie” (UNODC 2023).

Private prosecution

Private prosecution can be defined as the ability of private individuals or organisations to institute criminal proceedings against the suspects of an offence.7cb32f5b33fa While private prosecution is available in many countries, international human rights instruments do not explicitly provide for such a right. The general rule remains that, when an offence is committed, it is the responsibility of the state to prosecute the suspect (Mujuzi 2015, p. 223).

International rules on access to justice and specific guidelines on victims’ rights do not explicitly refer to a right to privately prosecute individuals accused of gross violations. However, criminal proceedings may lead to a wider set of determinations that are not only related to restricting the rights of the defendant. For instance, rulings can also impose fines on the defendant to compensate victims. As such, while criminal prosecution is traditionally seen as a tool to address impunity rather than to provide reparation, it can be a first step towards compensating victims.

Private prosecution is available in dozens of countries, according to a study conducted by Jamil Mujuzi (2015), though there are significant variations in the way it is implemented in different countries. Particularly in countries with a common law tradition, private prosecution is the result of its long legal custom of favouring private resolutions to private conflicts. It has been referred to as a “useful constitutional safeguard against capricious, corrupt or biased failure or refusal of these authorities to prosecute offenders” (Edmunds & Jungnarain 2016, p. 2).

Legal standing for victims

An issue of concern when determining the role of victims in cases of grand corruption are the limits to the right to initiate private (criminal or civil) proceedings, which can also be called “legal standing”.

In general, courts will only hear suits pertaining to unlawful conduct when they are brought by individuals or organisations that are considered entitled to do so under that country’s legislation. Many jurisdictions require that complainants have a direct and concrete interest in the subject of the lawsuit, while others have more liberal rules that allow for anyone that can claim a good-faith interest in the matter to initiate judicial proceedings (Stephenson 2019, p. 40). Rules vary significantly from country to country, as demonstrated by the UNCAC Coalition’s international database with national legal frameworks for more than 30 countries on corruption damage reparation and legal standing for victims of corruption.

Legal standing is a potential barrier to private suits being used as anti-corruption tools due to the inherent dynamics of corruption schemes and their results. Unlike human rights abuses, the damages caused by corruption are often diffuse, indirect and widely shared by society. While it is undisputed that corruption harms societies, it is extremely challenging to connect criminal conduct, such as accepting a bribe, to specific individual victims of large-scale bribery schemes (Stephenson 2019, p. 40).

In the United States, the constitution requires would-be plaintiffs to establish that they have suffered a concrete and particular injury, caused by a fact that can be traced to the defendant’s alleged conduct. In Germany, for corruption cases, complainants have to demonstrate that they have suffered a direct injury to a personal legal interest and the law forbids private entities from suing on behalf of collective public interests (Stephenson 2019, p. 43). Where legal standing is only granted to direct victims of grand corruption, NGOs are unable to represent the interests of individuals and communities who have suffered harm as a consequence of grand corruption schemes.

On the other hand, some countries adopt more liberal rules on legal standing. In Spain, citizens can bring a suit if the issue involves the public interest. Similarly relaxed rules can be found in Colombia and South Africa (Stephenson 2019, p. 44). This type of looser framework facilitates the work of NGOs and other organisations that want to seek alternative pathways to address impunity in grand corruption cases.

The rules may vary from private criminal prosecution to private civil litigation, but the general dynamics and challenges to these particular pathways are very similar.

Restrictions for private prosecutions

There are a number of possible restrictions on the rights of victims to initiate criminal proceedings against perpetrators:

1. They may be limited by the nature of the offence. For example, in Singapore, private prosecution may only be brought in case of offences for which the maximum term of imprisonment does not exceed three years.
2. Permission of the public prosecution authority may be required before proceedings can move forward. The UK Bribery Act explicitly requires the consent of the director of the Serious Fraud Office before prosecuting any of the crimes listed in its Section 10. Also in the UK, the Crown Prosecution Service may take over private prosecution proceedings and/or discontinue them (Stephenson 2019, p. 47). This is also possible in other jurisdictions, such as Singapore and South Africa (Mujuzi 2015, p. 246).
3. Conversely, in some countries, such as Brazil, private prosecution is only allowed if public prosecutors do not file charges within the period set by law (Mujuzi 2015, p. 230).
4. Restrictions may exist on the type of redress sought by private prosecutors. They may only be allowed to pursue compensation for direct personal injury or loss; seeking recovery of the proceeds of a crime is not possible through this method (Stephenson 2019, p. 47).
5. In some countries, specific people (e.g. a family member of the accused) or types of organisations are not allowed to act as private prosecutors. In others, a lawyer must be hired to represent them (Mujuzi 2015, p. 231-233).

Other obstacles for private prosecution include the costs associated with sustaining prolonged litigation and the challenges that come with obtaining sufficient evidence without the police’s involvement before the trial begins (Mujuzi 2015, p. 242).

However, even in cases where individuals and organisations may not act as private prosecutors, there are mechanisms to ensure greater accountability in the prosecutors’ decision not to proceed with formal charges. Following the filing of a criminal complaint, prosecutors may be required to proceed with an investigation and, if sufficient evidence is found, to prosecute the case. They may also be required to present formal justification in case the decision not to pursue a case is made. Thus, restrictions on prosecutorial discretion may serve as checks when the power to prosecute rests solely with the state (Stephenson 2019, p. 48).

Additionally, victims may be granted rights to appeal when prosecutors decide not to move forward with a case. For example, the EU’s Victim’s Rights Directive determines that “Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute” (art. 11). However, this right is not applicable if that decision is a result of an out-of-court settlement, which is fairly common in grand corruption cases (art. 11, par. 5).e8b5f494a525

International anti-corruption enforcement and investigative agencies

The International Commission against Impunity in Guatemala (CICIG) was set up by an Agreement signed between the United Nations and the government of Guatemala in 2006. Its initial mandate of two years was renewed multiple times, until the commission’s closure in 2019.

Its original mandate was focussed on the investigation of criminal organisations spawned from the state intelligence and military apparatus. These organisations were collectively known as illegal clandestine security apparatus (CIACS83f0a18ba969) and they were considered responsible for systemic violations of fundamental rights against Guatemalan citizens.

To fulfil this mandate, the CICIG was empowered to conduct investigations, but arrests, searches and seizures depended on the public prosecutor’s office and required court orders. The commission could act as joint plaintiff on criminal cases, according to the criminal procedures code. It could also file administrative complaints against public officials, particularly those who obstructed its activities, and to participate in disciplinary proceedings as an interested third party (art. 3 of the Agreement between the UN and Guatemala).

CICIG worked closely with Guatemalan authorities, especially the attorney-general, which was key to its successes. It built its capacities and supplemented prosecutors’ efforts where they were not sufficiently equipped to handle investigations and cases. CICIG also supported legal reforms to empower prosecutors with capacities such as wiretapping and undercover investigations (Kuris 2019).

The commission could also receive reports of wrongdoing, including corruption, and ensure that the identities of whistleblowers, witnesses, experts and collaborators remained secret and that they would be protected against any retaliation (art. 3, [g] of the Agreement between the UN and Guatemala).

In the end, the CICIG was considered responsible for a substantial decline in the Guatemala’s homicide rate between 2007 and 2017, as well as for the enactment of substantial legal and institutional reforms, including the creation of the special public prosecutor against impunity (International Crisis Group 2018). In the 12 years of its operations, 60 criminal networks were dismantled, and 680 individuals were indicted, with at least 310 convicted (Schneider 2019).

The Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH) was set up by an Agreement between the Organization of American States (OAS) and the government of Honduras in 2016. Its mandate included the investigation of large networks of corruption, with the goal of breaking them up. There was a division dedicated to the “support, oversight, and active collaboration in the prosecution of corruption cases” (art. 3 of the Agreement between OAS and Honduras).

Comprised of eminent international judges, prosecutors, police officers and professional forensics specialists, this division was tasked with advising, overseeing and evaluating local law enforcement officials as they investigated, prosecuted and pursued corruption cases, criminally and/or administratively, as well as in recovering proceeds of corruption cases. It was also tasked with establishing a system for receiving corruption reports, and with selecting and certifying the law enforcement officials who would be responsible for investigating, prosecuting and sentencing cases of corruption.

The MACCIH had the power to propose legal and institutional reforms to Honduras’ anti-corruption system and review the work done by the institutions that make up the country’s justice system, drafting recommendations to improve it.

The MACCIH’s work ended in 2020, when negotiations to renew its mandate failed. Throughout the four-year period, the mission’s work resulted in the “prosecution of 133 people, in the prosecution of 14 cases and, above all, in strengthening national capacities to combat corruption and impunity” (OAS 2020).

In both cases, the commissions were forced to close by the national governments of Guatemala and Honduras, which demonstrates the challenges of international efforts to interfere and break the vicious cycle of corruption and impunity.

The experience of the European Union Rule of Law Mission in Kosovo (EULEX) should also be mentioned here. Launched in 2008, EULEX remains in place at the time of writing, albeit with a smaller mandate and diminished powers and resources. It was originally set up to strengthen the rule of law and counter impunity and organised crime. As such, EULEX had executive powers to, where it found reasonable cause to suspect local authorities’ impartiality, to take direct responsibility over cases and, even, overrule local courts and authorities. Its mandate also included strengthening local institutions through capacity building efforts (Kuris 2019).

EULEX handed down hundreds of criminal verdicts, including in organised crime and corruption cases. However, most of the corruption cases it handled went unsolved, and there is widespread disappointment over its results, especially considering the depth of resources available to its work: the annual budget surpassed €100 million (Kuris 2019).

More recently, efforts to replicate the experience of the CICIG have been attempted elsewhere in Latin America. In 2019, the government of El Salvador signed an agreement with the OAS to establish an International Commission against Corruption and Impunity in El Salvador (CICIES). This agreement, however, was never presented to congress for ratification, and the CICIES did not have a mandate for independent investigation, nor was it able to help prosecute cases (Bullock & Call 2021).

Despite these obstacles, the commission managed to assist prosecutors in the investigation of fraudulent and illegal contracts using emergency COVID-19 funds from the health and finance ministries. This prompted efforts by civil society organisations to strengthen the CICIES’s mandate and independence, with a bill of law being presented to congress. However, in June 2021, the government of El Salvador pulled out of the agreement that had established the CICIES (Reuters 2021).

Efforts to coordinate anti-corruption investigations between countries have also been attempted with a broader scope. Although there is limited information about its functioning, the International Anti-Corruption Coordination Centre, established by the UK and hosted at the National Crime Agency, purports to “improve fast-time intelligence sharing, assist countries that have suffered grand corruption and help bring corrupt elites to justice”. It brings together enforcement agencies from mostly English-speaking countries to facilitate cooperation (Ryngaert 2022, p. 6).

A more recent development, within the European Union, was the creation of the European Public Prosecutor’s Office (EPPO), which has the power to investigate and prosecute crimes against the EU budget, including corruption (Ryngaert 2022, p. 6).

Alternative pathways to address impunity through civil litigation

Civil litigation026ab414870d can provide an avenue to ensure that perpetrators of grand corruption schemes suffer some type of punishment and victims receive some sort of reparation for the harm suffered.

In many countries, civil proceedings have a lower standard of proof than criminal proceedings. This means that the evidentiary threshold to demonstrate someone is liable for a corrupt conduct is lower in civil cases. Even when an individual is found to be not guilty in criminal courts for lack of sufficient evidence, private claims can be still pursued in civil courts.

Civil litigation can lead to a similar range of penalties – fines and other monetary penalties, as well as asset confiscation – though imprisonment derived from civil proceedings is extremely rare4939c1e3dd10 (UNODC 2015).

Civil proceedings also have other advantages. They can often be carried out even when the alleged offenders are dead or absent. Civil proceedings can also be instituted against assets, which is useful when law enforcement officials are unable to identify their owners or when they are, for some reason, immune from prosecution (France 2022, p. 12).

While civil litigation will not lead to perpetrators of grand corruption schemes being imprisoned, it can lead to fines and the confiscation of their assets, which is a form of sanction against those individuals or organisations. In this sense, civil litigation can be seen as a (partial) alternative pathway to address impunity.

Civil litigation by law enforcement authorities

The UNCAC recognises the possibility of a parallel civil liability regime to punish corrupt practices. For example, Article 12 lays out the importance of proportionate and dissuasive civil penalties in case companies fail to comply with measures to prevent corruption.

Administrative fines have been considered an effective alternative to criminal enforcement, avoiding the complexities of criminal prosecution. In the United States, civil prosecution may be brought in cases of violations to the Foreign Corrupt Practices Act’s accounting provisions or in cases of tax avoidance based on a failure to properly account for bribery (UNODC 2013, p. 17).

A specific civil liability regime may also be applicable to public official and political agents. In Brazil, the Administrative Improbity Law establishes penalties such as removal from public office, suspension of political rights and debarment in cases of damages to the treasury, illicit enrichment and acts against the principles of public administration. These penalties are applicable through civil proceedings (Tonicelli 2021).

Civil litigation has received most attention, however, due to its potential to contribute to the recovery of stolen assets (World Bank 2015). The goal of asset recovery is not simply to deprive criminals of the proceeds of crime. it also serves to incapacitate criminal organisations and to compensate victims for the harm suffered.

There are a number of specific administrative procedures available to some law enforcement authorities that are related to asset recovery:

1. non-conviction-based confiscation, that is, the forfeiture of assets that does not depend on a criminal conviction, can result from civil proceedings
2. unexplained wealth orders (UWOs), a proceeding based on a rebuttable presumption about the illegal origins of an asset, possibly leading to its confiscation.
3. disgorgement, a civil remedy which can be used to force individuals or companies to give up profits obtained illegally (France 2022, p. 7)
4. property claims, a mechanism to enforce ownership rights on a particular identifiable asset
5. personal claims, that can be presented against individuals or entities for damages or restitution (World Bank 2015, p. 47)

Asset recovery in grand corruption cases can also be pursued through private lawsuits by law enforcement officials in other jurisdictions. The possibility of states initiating civil action in the courts of another jurisdiction to recover property that was acquired through the commission of a corruption related offence is envisioned in the UNCAC (art. 53). Also known as direct recovery, this is often seen as a more expedient route because it does not require waiting for enforcement action by the foreign jurisdiction or international cooperation proceedings (Brimbeuf 2021, p. 5).

The range of mechanisms available for securing and recovering assets varies from country to country, though common law jurisdictions usually offer a wider variety than civil law jurisdictions. In the case of the latter, confiscation is often only available in criminal proceedings. Other obstacles include the high legal costs associated with legal proceedings and the intricacy of money laundering schemes, which makes it difficult for officials to identify where stolen assets are located (Brimbeuf 2021, p. 7-8).

Civil litigation led by victims or CSOs

Civil litigation offers a pathway for victims of grand corruption schemes to seek different forms of reparation. It has been generally recognised that victims have a right to reparation, defined by the UN Office of the High Commissioner on Human Rights (2023) as “measures to redress violations of human rights by providing a range of material and symbolic benefits to victims or their families, as well as affected communities”.

According to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law, reparation measures include:

1. restitution: measures to restore the victim back to their original situation before the violation occurred
2. compensation: for any economically accessible damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case
3. rehabilitation: medical and psychological care, along with legal and social services
4. satisfaction: cessation of continuing violations, verification of the facts and public disclosure of the truth, public apology, and judicial and administrative sanctions against persons liable for the violations
5. guarantees of non-repetition: the implementation of measures designed to prevent future violations. This includes, for example, “promoting the observance of codes of conduct and ethical norms by public servants”

While not all of these measures can be sought via civil litigation (and this varies significantly from country to country), this wide range of possibilities demonstrates that victims or CSOs can seek and obtain a number of different determinations from civil courts.

Legal basis for private litigation

Human rights-related legal instruments consistently uphold a right to access justice. It is both a fundamental right and an indispensable component of the rule of law. The International Covenant on Political and Civil Rights affirms that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” (art. 14).

The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law go one step further in affirming that victims “shall have equal access to an effective judicial remedy as provided for under international law”. It also states that countries should provide groups of victims with the opportunity to claim reparation. Similarly, United Nations Convention against Corruption (art. 35) and the Civil Law Convention on Corruption (art. 1 and 3) both stipulate that the state should enable those who suffered damages as a result of acts of corruption to initiate legal proceedings and obtain compensation.

Despite the fact that many countries have legal frameworks that allow for the participation of victims in proceedings to recover damages and to obtain reparation, this rarely happens in practice (UNCAC Coalition 2021).

International jurisprudence has recognised that the right to access justice entails negative as well as positive obligations for the state. Ensuring that victims have legal standing to seek redress imposes a negative obligation not to obstruct access to the courts. But states are also required “to organise their institutional apparatus so that all individuals can access those remedies” (Inter-American Commission on Human Rights 2007).

This includes removing economic obstacles to accessing the courts and establishing the components of due process of law in administrative and judicial proceedings. Their goal should be to ensure the full subset of rights that make up the right to access justice, including the right to a fair trial in a reasonable time and the right to a reasoned decision on the merits of the matter (Inter-American Commission on Human Rights 2007).

Concerning economic obstacles, given the high costs associated with litigating cases of grand corruption, one should also be mindful of the right to legal aid. The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems reaffirms that states “should, where appropriate, provide legal aid to victims of crime”.

Alternative pathways to address grand corruption through non-judicial mechanisms

Administrative proceedings

Apart from civil and criminal litigation, administrative proceedings also provide an avenue to address impunity for grand corruption. These are conducted outside of the justice system, usually led by specific bodies within the government, such as internal affairs.

The UNCAC recognises the possibility of states instituting administrative liability regimes for companies (art. 12). In some countries, the responsibility for investigating, prosecuting and deciding on a company’s liability for misconduct, especially for foreign bribery, lies with the government. The OECD (2016) conducted a stocktaking report that found that 11 countries use a non-criminal liability method, including through an administrative system. These include Brazil, Colombia, Germany, Mexico and Russia.

Possible punishments for legal persons that result from administrative proceedings, in general, include fines and monetary penalties, and asset confiscation and restitution, as well as revocation or suspension of licences, permits and warnings (UNODC 2015). Other possible penalties are debarment, prohibition from advertising, inability to access government benefits such as fiscal incentives, subsidised credit or export promotion benefits, and dissolution, which amounts to terminating the company (OECD 2016, p. 134).

Administrative sanctions are also an important component of anti-money laundering systems and, according to Recommendation 35 of the FATF Standards, should be applicable to natural and legal persons who are subject to anti-money laundering (AML) provisions.

Disciplinary measures, usually handed out through administrative procedures, are also mentioned by the UNCAC as possible responses to violations of codes of conduct by public officials (art. 8, par. 6). Disciplinary proceedings are usually internal processes in government and provide a path to impose penalties on public officials for misconduct. In general, penalties administered in these proceedings include warnings, suspension, demotion and exoneration.

Sanctions by international organisations

Pursuant to Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) is authorised to enact sanctions and other measures when it determines the existence of a threat to the peace and security of the international community. Thus far, grand corruption has not been considered to have risen to the level of such a threat.

The issue of corruption, however, has come up as an element of concern, for example, in relation to Libya (Resolution 2570) and Liberia (Resolution 2308). In other instances, the UNSC has highlighted the importance of good governance and transparency for governments to improve their service delivery capabilities and produce stability in the Central African Republic (Resolution 2387), in Iraq (Resolution 1637), in Sierra Leone (Resolution 1829) and in Bosnia and Herzegovina (Resolution 2549).

Notably, in September 2018, the UNSC held an informal meeting (also known as an Arria-formula meeting) to discuss the situation in Venezuela. In particular, the meeting focussed on the impacts of corruption in the country, featuring a testimony from anti-corruption activist and Transparencia Venezuela founder, Mercedes de Freitas.dc2cb49e8d5f

Within the European Union, sanctions have been used since the 1990s on the grounds of gross human rights violations and actions undermining democracy and the rule of law. More recently, geographical sanctions were used to target cases of grand corruption in three countries – Egypt, Tunisia and Ukraine – to facilitate the recovery of stolen assets after authoritarian regimes were toppled by popular uprisings. Financial misconduct concerning public funds was also a component of the sanction regime adopted in relation to Lebanon in 2021 (European Parliamentary Research Service 2023).

Multilateral development banks

Multilateral development banks (MDBs) have created sanctions systems to deal with the improper use of the funds provided by them to borrowers and other business partners. This recognises the need for the proceeds of its financial support to actually be used in the way it was originally intended. It also seeks to exclude bad actors from further access to opportunities provided by these banks and to deter contractors from engaging in future irregularities (Irving & McCarthy 2022). It usually targets legal persons and individual contractors, focusing on the supply side of corruption (Rahman 2020, p. 4).

This system allows for the imposition of administrative sanctions, which vary from bank to bank. The World Bank Group (2016), for example, applies five different types of sanctions: fixed-term debarment, debarment with conditional release, conditional non-debarment, letter of reprimand and restitution. The latter is a requirement that sanctioned parties take action to remedy the harm caused by its conduct, including through repayment to the borrower or other parties (World Bank 2012).

These institutions also publish lists with the names of individuals and entities punished, which is used to name and shame them, in addition to allowing other entities to evaluate the appropriateness of hiring previously penalised businesses. Other international organisations, such as the United Nations and the European Union, as well as national governments also make debarment lists available to the public (Rahman 2020).

Debarment is defined by Transparency International (2023b) as the procedure whereby individuals and companies are excluded by governments and multilateral agencies from participating or tendering in projects. In this sense, this punishment strips these individuals of future economic opportunities.

Following the signing of the Agreement for Mutual Enforcement of Debarment Decisions in 2010, regional development banks and the World Bank Group committed themselves to establishing a system for mutual recognition of enforcement actions (cross debarment). In summation, they agreed to enforce the debarment decisions made by the other participating institutions.

Unilateral anti-corruption sanctions

Governments have, over the past decade, developed targeted sanctions regimes designed to hold foreign individuals and organisations involved in grand corruption schemes accountable for their misconduct. Targeted sanctions, unlike general economic or trade sanctions, affect the general public to a much lesser extent. These regimes are usually geographically or thematically focussed, with a recent trend towards the latter, given its advantages in terms of flexibility and agility (European Parliamentary Research Service 2021, p. 3).

The United States has led the development and application of targeted anti-corruption sanctions over the past decade. Following the arrest, torture and death of Sergey Magnitsky, a whistleblower who documented widespread corruption within the Russian government, the United States enacted the Sergey Magnitsky Rule of Law Accountability Act in 2012. This law instituted a targeted sanctions regime against Russian officials under the president’s authority. Individuals involved in gross human rights violations against Magnitsky were subject to the blocking of their assets found under US jurisdiction, prohibited from taking part in US based transactions and denied entry into the United States (Congressional Research Services 2020).

In 2016, the United States enacted the Global Magnitsky Human Rights Accountability Act (GMA), which globalised the previously Russian-centred targeted sanctions regime. Under this law, the US president can impose sanctions on foreign individuals if they are considered responsible for human rights abuses or for “acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions” (Section 3, [a], [3]).

Two types of sanctions are available under the GMA: (i) inadmissibility to the United States, which includes revocation of visas, and (ii) blocking of property, including bans on transactions, payments and exports. These sanctions are considered administrative in nature since the decision to impose (and revoke) them is made following internal proceedings within the executive branch of the US government. Additionally, The US State Department, under the provisions of Section 7031(c) of Department of State, Foreign Operations, and Related Programs Appropriations Act, can impose visa restrictions on individuals involved in corruption.

Other countries have followed the United States in the creation of corruption sanction regimes. Canada’s 2017 Justice for Victims of Corrupt Foreign Officials Act is closely modelled on the US legislation. More recently, the UK enacted the Global Anti-Corruption Sanctions Regulations 2021, which targets serious corruption cases, defined as either bribery or misappropriation of property. In 2021, Australia also set up a Serious Corruption Sanctions Regime with similar provisions.

In 2020, the EU adopted legislation that instituted a global sanctions regime for human rights violations, though it fell short of including corruption in its provisions. However, there are discussions to include corruption within this regime, a proposal that has received the backing of the European Commission president, Ursula von der Leyen (European Parliamentary Research Service 2023, p. 5)

A recent study conducted by human rights organisations found that, as of November 2022, at least 12 countries had adopted Magnitsky style sanctions regimes. Of those 12 countries, only three – the US, the UK and Canada – had used sanctions to respond to corruption. Between those three, the US had made the most corruption designations (299), followed by Canada (31) and the UK (27). The most common types of corruption cited in these designations are misappropriation of state funds, money laundering, fraud and bribery (Human Rights First et al. 2022, pp. 47-49).

OECD national contact points

The OECD Guidelines for Multinational Enterprises contain a set of recommendations made by governments for multinational enterprises, made up of non-binding principles and standards for responsible business conduct. Chapter VII of the guidelines notes that enterprises should not “directly or indirectly offer, promise, give or demand a bribe or other undue advantage to obtain or retain business or other improper advantage”.

The guidelines also contain more detailed recommendations for companies, including the development of ethics and compliance programmes, the use of risk based analysis and adequate due diligence proceedings, as well as greater corporate transparency. They also require adherent countries to establish a national contact point (NCP) to promote these recommendations and resolve claims of corporate misconduct, including breaches to anti-corruption standards.

The NCPs, which exist in 51 countries, vary greatly from country to country, including their ability and willingness to hold companies accountable for their misconduct. Their in-built complaint procedure focuses primarily on resolving breaches of the guidelines through conciliation and mediation. It also provides follow-up mechanisms to ensure that the agreed-upon settlement is implemented by the companies (OECD Watch 2023).

However, some NCPs are empowered to issue determinations, i.e., declarations on whether the company’s conduct was adherent to the guidelines or not. In some countries, there are further consequences for companies that fail to engage in the NCP process or that have been found to violate the guidelines, such as limited access to export promotion or other economic benefits (OECD Watch 2023).

While the number of complaints received by NCPs on corruption related issues remains small when compared to complaints on environmental and human rights violations, in theory, these proceedings provide an avenue to hold companies accountable for violations of the anti-corruption standards found in the guidelines.ea2ab6e35f2c

International human rights procedures

There are a number of international organisations and bodies that receive complaints of human rights violations and abuses. Depending on the circumstances, the procedures available within these bodies can provide an avenue for victims of grand corruption to seek reparation, although further research is still needed to better understand the limits and possibilities of these procedures as they relate to grand corruption.

There are international courts that abide by specific sets of rules concerning their jurisdiction and scope of action, such as the Inter-American Court on Human Rights (IACHR), the European Court of Human Rights and the Economic Community of Western African States (ECOWAS) Court of Justice.

These courts can play different roles in measures to curb corruption, even if they do not directly hold perpetrators of grand corruption schemes accountable for their actions. On one hand, they can recognise and reaffirm rights which are essential to detecting corruption, such as the right to access information. For example, in the Claude Reyes v. Chile case, the IACHR (2006) found that Chile had failed in its obligations to adopt legal provisions ensuring the right to access information to its citizens.

Transparency International’s chapter in Peru, Proética, sought out the Inter-American Human Rights Commission, a body that is connected to the IACHR, to raise alarm about cases of corruption and attacks against human rights and environment defenders. In doing this, Proética aimed to have an international organisation recognise the responsibility of the Peruvian state and pressured it into taking action against such violations.5a35266d0343

On the other hand, these courts may serve to make the argument that grand corruption cases are violations of human rights. For example, Ghana Integrity Initiative brought a case before the ECOWAS Court of Justice against a shady government deal to sell the majority of its future gold royalties from mining leases to an offshore company. This represented, the CSO alleged, a violation of art. 21 of the African Charter on Human and Peoples’ Rights, which seeks to ensure that all peoples are entitled to determine how their wealth and natural resources are disposed (Transparency International 2022).

They can also be a forum to highlight the impacts of corruption and seek different forms of reparation, even if they are not necessarily empowered to investigate its origins. In another case before the ECOWAS Court of Justice, the Social and Economic Rights and Accountability Project brought a case against the Nigeria government due to reports about the pervasive impact of corruption on the education sector. This led to a decision that recognised the right to education was threatened by corruption. The court also ordered the government to provide the necessary funds to cover the shortfall lost to corruption, preventing the denial of this right to the Nigerian population (Mumuni 2019, p. 130-135).

The United Nations Human Rights Council (UNHRC) can also act on individual cases of reported violations through its special procedures, which are conducted by independent human rights experts with mandates to report and advise on human rights through a thematic or country specific perspective. They can act on individual cases of reported violations by sending communications to states and others. The UNHRC can also establish investigative bodies, which may take the form of fact-finding missions or commissions of inquiry, into situations of severe human rights violations. There are currently nine such bodies, looking at countries such as Venezuela, Nicaragua and Iran.20326b22d7fa

Some human rights treaties also instituted treaty bodies, which are committees of independent experts responsible for monitoring the implementation of the treaties and for deciding on complaints brought against states parties.9b6a85e552ca