Basic guide to corruption and human rights

Human rights encompass those minimum standards of dignity that all humans are endowed with, including rights to life and liberty, association and expression, political rights, and basic economic and social rights. The modern corpus of human rights law includes the Universal Declaration of Human Rights, two Covenants, and global treaties dealing with specific vulnerable groups (including women, children, migrants, refugees, racial minorities, and persons with disabilities) and specific prohibitions on torture or enforced disappearance. It also includes regional treaties on human rights and numerous declarations, guidelines and other forms of ‘soft law’ that set out standards for states.

Almost all states have signed up to at least one of the above treaties. These and other instruments also create an ecosystem of: expert committees and procedures that can issue reports and recommendations; political bodies like the UN Human Rights Council; regional bodies and courts to hear cases against states and issue both injunctions and damages; and civil society organisations (CSOs) focused on international human rights.

Nonetheless, human rights violations continue – and evolve. They have been significantly exacerbated due to shrinking democratic spaces, increasing inequality, rising disinformation campaigns, and armed conflicts. These factors have also changed the face of corruption, which has become more systemic, transnational, and intertwined with both organised crime and predatory private-sector elites. In some places, corrupt groups have captured state institutions and changed the very nature of the state to benefit themselves. Corruption negatively impacts the enjoyment of human rights and can be a vehicle to institutionalise violations. Human rights violations in turn facilitate and perpetuate corruption, especially high-level corruption and state capture.

The link between corruption and human rights violations

Corruption affects the full range of human rights. Most obviously, corruption undermines economic, social, and cultural rights such as education, health care, and housing. As examples, if the money allocated to such sectors is stolen, that means there is no budget. If materials or services are substandard because a contract was the product of a bribe, then houses, bridges, or health services fall apart.

This impacts the provision of education, health, and housing as well as causing harm to individuals. If licences, permits, public contracts, land titles, environmental approvals, or tax exemptions can be bought and sold with a bribe, those unable to pay up will see their standard of living – and often their property – impacted. The resulting projects or changes will often come with environmental or social harms that would not have existed without the bribe, and if the cost of bribes is built into the price of goods and services, consumer prices will rise.

Political and civil rights are also at risk. If political corruption means that only certain political parties get financing or that some candidates can pay off electoral authorities, then the population’s ability to choose their leaders is meaningless and trust in government dissolves. If judges, prosecutors, and prison officials are corrupt or the rules of the judicial system itself are rigged, then the rule of law is threatened, mistreatment in detention becomes more likely for the vulnerable who cannot bribe their way out, and impunity becomes the norm.

If news media can be bribed to avoid or silence some views while allowing others to speak, then freedom of the press is at issue. If journalists, lawyers and judges, local land or environmental activists, or whistleblowers are subject to threats, imprisonment, inhumane treatment, and even death for their anti-corruption work, that violates the basic guarantees of life, liberty, and freedom from cruel treatment that are at the core of human rights. In particular, corruption in police, court and prison systems can facilitate, exacerbate, and cover up torture and ill-treatment through extortion and other means.

Marginalised populations are most likely to be affected by both corruption and human rights violations. The poor are less able to bribe officials or secure impunity, and more likely to depend on the publicly funded health, education, housing, and development projects that are often the subject of embezzlement. Women are vulnerable to sexual corruption to obtain jobs, grades, or access to services, or to avoid harm. Indigenous groups are particularly likely to find their land and resources stolen, while prisoners are easy prey to extortionists.

What is more, large-scale, systemic corruption is insulating a small group in many countries from any kind of accountability – whether legal, political, or international. The same networks (and often people) are frequently involved in both corruption and human rights violations – impunity and secrecy are common denominators. These networks are particularly likely to persist and expand their influence during – and also after – armed conflict or repression ends, creating a ‘captured peace.’

In turn, human rights violations perpetuate and exacerbate corrupt practices. Threats, violence, and violations of freedom of expression and association make corruption dangerous to uncover, discuss, and investigate; impunity and fair trial violations limit legal remedies for corruption-induced harms. Corruption’s negative impact on education, health, and other basic economic and social rights can leave people further marginalised. People who have poor health and/or have no access to quality education face more barriers to fight back effectively against corruption and state capture. Corruption in electoral processes can also perpetuate capture and control of the state to the detriment of human rights.

Measures preventing and responding to corruption can also be problematic in human rights terms, particularly where the prosecutorial or judicial function has itself been corrupted or captured. There are many examples of human rights defenders, journalists, and independent prosecutors or judges being unjustly criminally accused of corruption or money laundering.

Civil forfeiture or confiscation laws can also be misused to deprive people of property. The process of detecting, investigating, and prosecuting – or civilly combatting – corruption must comply with international standards regarding the right to a fair trial, the presumption of innocence, and the rights to equality under the law, to property and privacy.

Combining anti-corruption and human rights agendas can help advance both

Both human rights and anti-corruption laws and practices are efforts to improve how states (and to a lesser extent private entities) uphold values like the rule of law – including that no one is above the law – as well as their role in providing for the common good. The rules and techniques of each are complementary and mutually reinforcing.

A human rights approach can strengthen and fill gaps in anti-corruption law. Human rights focus on the acts – or omissions – of the state itself. A human rights-based approach clarifies international state responsibility in respecting, protecting, ensuring, and fulfilling human rights, as well as the consequences of breaches. This means that states must prevent (by law, regulation, or otherwise) actions by private parties as well as state officials that violate rights, investigate and prosecute violations, and redress victims. Redress can include declaratory and injunctive relief, as well as remedies for material and non-material damages. They must also move towards greater implementation of rights over time.

These duties complement the obligations in the UN Convention against Corruption (UNCAC) and other anti-corruption treaties, as they also open new avenues for victims to seek redress. This is especially so when dealing with systemic or large-scale corruption, particularly when the crimes are committed by combinations of organised crime, high-level officials, and/or private-sector elites – all of whom benefit from impunity in dysfunctional or captured justice systems.

International anti-corruption treaties mostly focus on domestic law. They require states to create laws to prevent and punish corruption. However, these treaties offer little help if corruption is system-wide, involves control by corrupt networks over laws and institutions, or if top officials are not willing to enforce these rules. In contrast, human rights law focuses on the institutions and networks involved in corruption that are linked in many ways to the state, holds states responsible for their inaction, and applies the legal rules developed to handle widespread violations of rights, including for example those on presumptions and inferences.

While attention to human rights can complement and enhance anti-corruption law, the converse is also true. Almost always, high-level corrupt officials also commit human rights violations to keep themselves in power. They attack rights defenders, journalists, and whistleblowers and violently displace populations. Better anti-corruption measures can help expose, constrain, and remove them from power.

Understanding and mapping corrupt networks can help human rights investigators and prosecutors connect the dots between corrupt and repressive state officials and their private allies. Transparency around issues such as public contracting, beneficial ownership of assets, and the identities and working methods of banks, realtors, consultants, and other enablers, can improve human rights by reducing impunity and facilitating accountability. Prevention efforts aimed at political corruption and undue influence in state institutions makes large-scale capture of these institutions harder, therefore improving political and civil rights.

These considerations correspond with the concern in the global anti-corruption regime of returning assets to the people of the countries from which they were stolen. UNCAC’s Chapter V on asset recovery, which considers a variety of ways in which stolen assets can be returned to both states and victims, reflects a broad desire to repair the harm done by corruption. So do the articles in UNCAC recommending broad societal participation in anti-corruption efforts (Article 13, 32(5)), demanding witness and whistleblower protection (Article 32), and providing for compensation for victims (Article 35, 57(3)). The provisions mutually reinforce those in human rights law.

International and regional bodies, along with civil society groups dealing with either human rights or anti-corruption agendas, have until recently been siloed and those agendas have been seen separately. All three actors are recognising the links and the need to use human rights and anti-corruption mechanisms, forums, and discourses together. Large human rights organisations now have anti-corruption specialists. Likewise, anti-corruption organisations are building up their human rights expertise. This is a welcome trend, and one that needs to be encouraged – especially at the local and grassroots level.

Three approaches to linking corruption and human rights violations

So far, international organisations and courts have dealt with the links between human rights violations and corruption in three distinct but overlapping ways. First, most international anti-corruption and human rights bodies, including some regional courts, recognise the interrelationship but use the existence of corruption largely as an explanatory or contextual condition that gives rise to one or more violations of existing rights. The Political Declaration adopted at the 2021 Special Session of the United Nations General Assembly against corruption (UNGASS Declaration) expressed concern ‘about the negative impact that all forms of corruption, including the solicitation of undue advantages, can have on access to basic services and the enjoyment of all human rights, and recognise that it can exacerbate poverty and inequality and may disproportionately affect the most disadvantaged individuals in society.’

The Human Rights Council has repeatedly addressed the links between corruption and the ability to realise rights, especially economic, social, and cultural (ESC) rights; asset recovery; good governance; and sustainable development. Its Universal Periodic Review (UPR) has sporadically raised corruption as an impediment to human rights. Treaty bodies have linked corruption to their subjects. For example, the Committee against Torture’s Subcommittee on Prevention detailed in 2014 the links between corruption in places of detention and the right to be free of torture, and the Human Rights Council also found the same links in 2018. A range of special rapporteurs has also taken up the subject.

In 2019, the Inter-American Commission on Human Rights issued a groundbreaking report on corruption and human rights. Regional human rights courts in the Americas, Africa, and Europe have noted corruption as context and cause of a range of rights violations. Anti-corruption and human rights advocates, as well as state parties, can make use of these mechanisms to: file shadow reports; send information to the Human Rights Council under Special Procedures system; prompt states to question state practices during the UPR review process and the UNCAC implementation review; and create and lobby for resolutions of global and regional bodies on specific aspects of the links between the two.

A second entry point highlights a human rights-based approach (HRBA). This approach, widely used by the UN and in development planning, highlights the obligations of states as duty-bearers and their inhabitants as rights-holders, and the universality and indivisibility of all rights. In addition to the broad scope of state duties discussed above, an HRBA encompasses the procedural principles of transparency, participation of those affected in decisions, access to justice, accountability (which could be criminal, civil, administrative, or constitutional), no discrimination or backsliding, and specific attention to vulnerable groups.

As a third entry point, some scholars have gone further and put forward that corruption itself is a free-standing violation of human rights and should be recognised as such. In some countries, for example, human rights treaties (but not all treaties) have a superior status to ordinary laws. Seeing corruption as a human rights violation would bring the UNCAC and other anti-corruption treaties into that status. Courts in India, El Salvador, Mexico, Costa Rica, and Argentina have recognised a right to be free from corruption in some way.

Scholars have suggested that such a right could be found in common with Article 1 of the basic human rights covenants (International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR)), which holds that peoples may freely dispose of their natural wealth and resources, and may not be deprived of their means of subsistence. Other authors find it in Article 2(1) of the ICESCR which requires states to take steps to the maximum of their available resources to respect, promote, and fulfil the rights therein, and to some extent in the anti-discrimination provisions of most human rights treaties given differential impacts on vulnerable individuals and populations.

A free-standing right could be established through a protocol to existing treaties, through a strategy culminating in Human Rights Council and General Assembly resolutions, or through an incremental approach based on national and regional judicial decisions and human rights body recommendations. In national constitutional or statutory law, such a right could be based on the obligation to faithfully carry out efficient public administration, to maintain trust in government, to regulate anti-competitive practices, or to protect consumers as well as through an explicit right to be free of corruption – be it either petty or grand corruption.

The drawbacks of this approach include states’ reluctance to create new rights, the relative failure of most ‘third generation’ rights to provide practical improvements in rights observance, and the enormous effort that would be needed by civil society to enshrine a new stand-alone right. There are also complex – if perhaps manageable – problems in defining the outer limits of such a right. No society is totally free of corruption of one sort or another. A focus on grand, pervasive, or systemic corruption that affects the rights of large numbers of persons might facilitate the application of a stand-alone right.

Identifying victims of corruption and human rights violations

A human-rights approach, whether procedural or substantive, emphasises the existence and rights of victims. Victims may be individuals or identifiable groups, such as indigenous peoples or unions. The UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power sets out a basic definition based on having suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of fundamental rights. For example, if corruption-fuelled substandard medical care or poor construction causes death or injury, or embezzled funds prevent identifiable individuals from taking advantage of promised benefits, then individual harm results. If an indigenous group loses its land, water, or livelihood due to a hydroelectric project where the contract, land deed, and/or licences would not have been granted without bribes or undue influence, the group has a claim as such. In addition, corruption violates diffuse or social interests of the entire society, in the same way that violations of environmental rights, cultural heritage, or consumer protection do.

Individual, collective, and diffuse interests can and should be analysed in any corruption case. Recent human rights decisions of the Court of Human Rights and of several national courts explain why a broad view of standing (who can access a court) is needed in cases of diffuse or social interests. CSOs with long-standing expertise in the subject matter should be authorised to represent diffuse interests, as should state attorneys’ offices. Cases in France, Argentina, and elsewhere provide models of organisational representation.

A human rights approach also recognises that redress for these harms goes far beyond monetary compensation, although such compensation is a part. Restitution of land, resources, or promised goods and services; rehabilitation in cases of physical, mental or legal harm; satisfaction (which could include public investigations or hearings, apologies, limits on contracting or public employment for violators); and measures of non-repetition are recognised remedies in international human rights law that could be adapted to the anti-corruption context. A broader view of the role of active victim participation in proceedings and public disclosure and truth-seeking – even in the context of settlements, plea bargains, abbreviated proceedings, or other non-trial resolutions – is also needed.

Admittedly, there are difficult issues in some (but by no means all) corruption cases surrounding how far out the ripple effects of a corrupt act should be recognised, and how to measure damages. There are also legitimate questions about whether a government that is incapable of stemming corruption involving organised crime or powerful corporations should spend scarce resources on redress for victims, but these concerns are less pressing under a broad view of reparations.

Understanding the corruption–human rights nexus allows for new conceptualisations, tools, and synergies. It can enhance thinking about prevention and accountability, broaden the actors engaged in anti-corruption work, and open up new avenues for collaboration and research. In particular, global and regional human rights and anti-corruption bodies can link these agendas through monitoring, reporting, and recommendations. States can ensure that victims – including collective victims and organisations representing diffuse interests – have access to proceedings involving their interests. Rights-respecting anti-corruption prosecutors can make creative use of a variety of approaches pioneered in human rights cases, including presumptions and inferences where secrecy is integral to the offence, tolling of short statutes of limitations, and increased use of civil forfeiture and extraterritorial jurisdiction. All these efforts can help confront the increasingly transnational, systemic, and high-level nature of the crimes at issue, and begin to change the narrative around their urgency.

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