Removing the Barriers to Retroactive Application of the United Nations
Convention Agaist Corruption to Pre-December 2005 Crime
During
his recent visit to Nigeria, the British Foreign Secretary Jack Straw
said that with coming into effect of “the newly signed UN convention
against corruption, the British government was now committed to
returning to the Nigerian government assets stolen from the country in
accordance with the UK law."
U.K signed the convention on December 9, 2003, but did not ratify it
until February 9, 2006. The
Convention which was adopted by the United Nations General Assembly in
October 2003, has been signed by 140 countries and ratified by 38 came
into force on December 14, 2005. It is the first legally binding
global instrument designed to help Member States fight corruption in
both the public and private sectors.
In the words of Antonio Maria Costa, Executive Director, United
Nations Office on Drugs and Crime (UNODC), "time and time
again, countries' assets have been looted by corrupt leaders, while in
the corporate world; many shareholders have been robbed by corrupt
managers."
According
to text of the Convention published by the UNODC, the Convention
establishes certain specific crimes to combat activities which are
commonly used in support of transnational organized crime activities:
participation in organized criminal groups, money-laundering,
corruption, and obstruction of justice. States Parties are required to
criminalize these activities, as well as to adopt legislation and
administrative systems to provide for extradition, mutual legal
assistance, investigative cooperation, preventive and other measures,
as necessary to bring existing powers and provisions up to the
standards set by the Convention. In addition to establishing a
corruption offence (Article 8), the instrument also requires the
adoption of measures to prevent and combat corruption (Article 9).
The
criminalization requirements include central provisions that are
binding on States Parties and supplementary ones that are
discretionary. The mandatory corruption offences capture both active
and passive corruption: “…the promise, offering or giving…” as well as
“…the solicitation or acceptance…” of any “undue advantage”. In both
offences the corrupted person must be a “public official”, the
advantage conferred must be linked in some way to acting or refraining
from acting in the course of official duties, and the advantage may be
conferred directly or indirectly. States Parties are also required to
criminalize participation as an accomplice in these offences. In
addition to the mandatory offences, State Parties are also required to
consider criminalizing the same conduct where the person promising
offering or giving the benefit is in one country and the public
official who solicits or accepts it is in another.
They are also required to consider criminalizing other forms of
corruption. In cases where the public official involved is involved in
a criminal justice system and the corruption is directed at legal
proceedings, the Convention offence relating to the obstruction of
justice would also be added to the offenses. The Convention also
requires the adoption of additional measures against corruption. The
text calls for “…legislative, administrative or other effective
measures to promote integrity and to prevent, detect and punish the
corruption of public officials”. It does not specify details of the
measures to be adopted, but does require further measures to ensure
that officials take effective action, including ensuring that the
appropriate authorities possess sufficient independence to deter
inappropriate influences on them. See UNODC anticorruption kit @.
www.unodc.org/pdf/crime.
The
Convention rests on four pillars: prevention and
criminalization of corruption, international cooperation and
asset recovery. It provides tough provisions on asset
recovery and also guarantees that nowhere in the world will be exempt
from the obligation to return looted assets. In the same vein, the old
excuse such as banking secrecy will no longer be an imp ediment. Under
the convention, countries agreed to co-operate with one another in
every aspect of the fight against corruption, including prevention,
investigation, and the prosecution of offenders. Countries are bound
by the convention to render specific forms of mutual legal assistance
in gathering and transferring evidence for use in court, to extradite
offenders. Countries are also required to undertake measures which
will support the tracing, freezing, seizure and confiscation of the
proceeds of corruption. In effect, states are required to return money
and other assets obtained through corruption to the country from which
they were stolen.
This
Convention is important for two reasons: it sends a warning to c
orrupt officials everywhere that they can no longer expect to enjoy
the fruits of their crimes by moving stolen assets abroad and secondly
it is also a message of hope to millions of people who have grown
angry and frustrated at seeing their country's wealth plundered by
criminals. The Convention is an indispensable tool to encourage mutual
legal support and technical assistance. With its entry into force, it
will become an international obligation and not just a principle of
reciprocity. The wide range of measures on cooperation contained in
the Convention and its protocols will provide national authorities
with a more effective framework and a variety of tools. Extradition,
mutual legal assistance, police cooperation and technical assistance
are among the well-known tools of international cooperation in the
struggle against crime.
Another critical area is the justice sector. The Convention recognizes
the integrity of the justice system as a central component of any
strategy to counter corruption, in particular among members of the
judiciary and the prosecution service. Building a culture that is
adverse to corruption is central to the integrity of both the private
and the public sectors.
Compared to any other international agreement, the Convention against
Corruption is most comprehensive and ambitious and would soon become
the global standard for a strong anti-corruption regime. Never before
has a Convention included stringent provisions against
money-laundering - the locomotive and conveyor belt of crime and
corruption. And, it is, without a doubt, an effective instrument for
combating the phenomenon of transnational financial crime
However, officials of the UN Office of Drug and Crime (UNODC), which
is the legal custodian of the convention, in an attempt to clarify the
ramifications of the Convention stated recently in an interview with
the Guardian Newspapers that the Convention could not be used for
crimes committed before the Convention came into force; meaning that
the Convention cannot have retroactive effect on acts committed before
December 14, 2005 pursuant to Article 28 of the Vienna Convention
which voids retroactive effects in legislation.
It is relevant to refer here to Article 28 of the Vienna
Convention on the Law of Treaties of 1969, which provides:
Unless a different
interpretation appears from the Treaty or is otherwise established,
its provisions do not bind the party in relation to any act or fact
which took place or any situation which ceased to exist before the
date of the entry into force of the Treaty with respect to that party.
The
Convention does not create a new offence in national and international
criminal law but is declaratory of pre-existing law
With
due respect to the position taking by the officials of UNODC to the
contrary, it is submitted that this Convention may be applied
retroactively and that is the intention of the U.N.
This is because the Convention does not create a new offence in
international criminal law, but is declaratory of pre-existing
national and international law. What the Convention added to the
existing body of international law is an affirmative obligation on
States parties to make provision for mechanism towards prevention
and criminalization of corruption, international
cooperation and asset recovery.
Growing concern about corruption as an international problem increased
through the 1980s and 1990s to the point where many countries were
forced to criminalize it.
Several countries including the U.S, U.K and very recently, Nigeria
had enacted anti-corruption legislation which criminalize corruption,
prescribe punishment for their violation and make provisions for asset
recovery or reparation of ill-gotten wealth ever before the convention
came into force. In other words, the Convention merely codified the
prohibition of corruption which had been criminalized by many national
legislation and has been made a binding international law. In this
sense, the Convention is necessarily both retrospective and
future-oriented.
According to Blacks Law Dictionary, (6th Edition, 1990),
a retroactive or “retrospective” statute is defined as “one
which gives to pre-enactment conduct a different legal effect from
that which it would have had without the passage of the statute,”
and in the words of Danielle DuCaine, 724 Loy. L.A. Int’l &
Comp. L. Rev [Vol. 25:697, the term also refers to laws which take
away, impa ir, or change rights acquired under existing laws with
respect to transactions already past. In general, while statutes are
presumed to operate prospectively only curative statutes may apply
retroactively in order to “clarify” existing law or cure a defect in
prior legislation. See Charles B. Hochman, The Supreme Court and
the Constitutionality of Retroactive Legislation, 71 HARV. L. REV.
692, 692 (1960).
The
positivist approach to international law insists on a basic rule of
non-retroactivity. As Professor
Charles R ousseau stated, "International law appears to be determined
by the principles of non-retroactivity. This principle is the result
of both the treaties and the diplomatic and judicial practice.
However, the rule of non-retroactivity, has known many exceptions,
most notably in the context of crimes against peace”.
In this Connection Professor Hans Kelsen commented:
The rule against retroactive legislation is a principle of
justice. Individual criminal responsibility represents certainly a
higher degree of justice than collective responsibility, the typical
technique of primitive law.
Since the internationally illegal acts ………. established individual
criminal responsibility w ere certainly also morally most
objectionable, and the persons who committed these acts were certainly
aware of their immoral character, the retroactivity of the law applied
to them can hardly be considered as absolutely incompatible with
justice. ... In case two postulates of justice are in conflict with
each other, the higher one prevails; and to punish those who were
morally responsible for the international crime …… may certainly be
considered as more important than to comply with the rather relative
rule against ex post facto laws, opens to so many exceptions.
In his opening Statement at the International Military Tribunal, the
British Chief Prosecutor Lord Hartley Shawcross stated:
There is thus no
substantial retroactivity in the provisions of the Charter. It merely
fixes the responsibility for a crime already clearly established as
such by positive law upon its actual perpetrators. It fills a gap in
international criminal procedure. There is all the difference between
saying to a man, “You will now be punished for what was not a crime at
all at the time you committed it” and in saying to him “You will now
pay the penalty for conduct which was contrary to law and a crime when
you executed it, although, owing to the imperfection of the
international machinery, there was at time no court competent to
pronounce judgment against you.
The general rule of non-retroactivity
of treaties and conventions, which was relevant in Nuremberg in
connection with the new concept of a "crime against peace", is not
however of relevance in the context of the crime of corruption and
money laundering which have always been crimes under national penal
laws and universally regarded as international crimes.
Corruption
is not only a crime; it is a crime against humanity. Corruption and
organized crime affect the daily lives of many people and
fundamentally undermine the chances of economies to grow, stated Mo
derator Marc Champion, Columnist, The Wall Street Journal Europe,
United Kingdom, in his opening remarks to this session on fighting
corruption and organized crime. Speaking at the World Economic Forum,
Peter Eigen, Chairman of the Board, Transparency International,
Germany, stated that over time, corruption has become so overwhelming
and systematic that it is difficult to deal with.
Corruption may not be as bad as genocide, but it is also a crime
against humanity. Corruption is a killer of initiative and trust. It
drives away foreign investment and undermines th e development of the
rule of law. But most callously, corruption robs African children of a
better future. Corruption directly harms the people, particularly the
poor. Corruption undermines the institutional foundation on which
economic growth depends. Corruption lowers the quality of public
services and infrastructure, distorts government spending decisions,
decreases tax and customs revenues, and damages confidence in the rule
of law. Corruption undermines confidence in public institutions and
exacerbates budget problems. Former U.S. President Grover Cleveland
had as his motto, “Public office is a public trust.” When officials
abuse that trust, democracy suffers. Corruption tears at the fabric of
democracy itself. The World Bank has identified corruption as “the
single greatest obstacle to economic and social development.”
Former
U.S Attorney General Ashcroft, speaking at the Second Global Forum,
said, "Corruption is no longer seen as an accepted cost of doing
business; it is no longer tolerated as an unavoidable aspect of
government. It is now widely recognized that the consequences of
corruption can be devastating: devastating to economies, devastating
to the poor, devastating to the legitimacy and stability of
government, and devastating to the moral fabric of society." This
change in perspective is the harbinger of a future where the corrupt
and those who corrupt them will be treated simply as what they are –
petty criminals, who will have to face the consequences of their
actions in a court of law, just like the thieves, vandals, or common
criminals.
Describing corruption as a crime against humanity, Susan Dicklitch,
associate professor of government at Franklin & Marshall College,
writing in Christian Science Monitor laments as follows:
“As
long as corruption exists at its current levels in Africa, and as long
as donors continue to look the other way, foreign aid will simply
serve to keep African kleptocrats in power. Consider this: Sub-Saharan
Africa has received an estimated $114 billion in bilateral and
multilateral aid from 1995-2002. Yet African countries have
consistently ended up at the bottom of the United Nations Development
Program's Human Development report, which measures life expectancy,
gross domestic product per person, and literacy.
So you
may ask the billion-dollar question: Where did the money go? Perhaps
the British high commissioner to Kenya, Edward Clay, was asking the
same question about official graft last month when - suggesting donor
aid to Kenya could be suspended - he publicly accused unnamed Kenyan
officials of behaving so gluttonously at the aid trough that they are
now "vomiting on the shoes" of donors.
And
sub-Saharan Africa has seen the likes of many gluttons. Some of the
most infamous include Mobutu Sese Seko, the former president of Zaire
(now the Democratic Republic of Congo) who allegedly stole $5 billion,
and Sani Abacha, former president of Nigeria, who allegedly looted
more than $2 billion. Both former leaders are dead, but their leg acy
of corruption continues to afflict their nations.”
According to UNODC, every criminal needs to "launder" the proceeds of
crime, but where organized crime, drug trafficking and corruption are
involved; the consequences of money laundering are bad for business,
development, government and the rule of law. Left unchecked, money
laundering can erode a nation's economy by changing the demand for
cash, making interest and exchange rates more volatile, and by causing
high inflation in countries where criminal elements are doing
business.
The
siphoning away of billions of dollars a year from normal economic
growth poses a real danger at a time when the financial health of
every country affects the stability of the global market. Money
laundering is bad for the economy. Most disturbing of all, money
laundering empowers corruption and organized crime. Corrupt public
officials need to be able to launder bribes, kick-backs, public funds
and, on occasion, even development loans from international financial
institutions.
Organized criminal groups need to be able to launder the proceeds of
drug trafficking and commodity smuggling. Terrorist groups use money
laundering channels to get cash to buy arms. The social consequences
of allowing these three groups access to the capacity to launder money
can be disastrous. Taking the proceeds of their crimes from corrupt
public officials, traffickers and organized cr ime groups is one of
the best ways to stop them in their tracks.
Because they deal with other people's money, banks (and other
financial and professional institutions) rely heavily on a reputation
for probity and integrity. Banks need their good name to build
business. A financial institution with a reputation for shady dealing
will be shunned by legitimate enterprise. The prestige of even a major
bank that is revealed to have assisted in the laundering of money can
be severely damaged. Money laundering is bad for business.
Comparing corruption to “gangrene”, a monster affecting developed and
developing countries alike, speakers in Committee II of the Eleventh
United Nations Crime Congress held in April 2005 agreed said the
challenge in the months ahead would be to ensure the implementation of
the United Nations Convention against Corruption.
Non-prescription of the crime of crime against humanityIt could be
recalled that when the United Nations drafted the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity (adopted 26 November 1968, in force 11 November
1970), it clearly and deliberately pronounced its retroactive
application. The principle of
nullum crimen sine lege, nulla poena sine lege praevia (no
crime without law, no penalty
without previous law), laid out in paragraph 1 of
Article 15 of the
International Covenant on Civil and Political Rights is conditioned as
follows in paragraph 2: "Nothing in this article shall prejudice the
trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general
principles of law recognized by the community of nations." Similarly,
article 11, paragraph 2, of the Universal Declaration of Human Rights
of 10 December 1948 stipulates that the prohibition of expost facto
penal sanctions does not apply if the offence was an offence under
national or international law. Clearly corruption and money laundering
are offenses recognized and criminalized by U.K, Nigeria and the
comity of nations before the coming into force of the Convention. In
this context it is relevant to recall the double vocation of the
Convention against Corruption, namely to prevent and to punish the
crime of corruption. In order to prevent corruption, it is important
to deter future offenders by abundant precedent of punishment of prior
offenders. < /PRE>
In the
classic Oppenheim/Lauterpacht textbook on “International Law”,
Professor Hersch Lauterpacht noted that the Genocide Convention which
is similar to the Convention against Corruption was not only
forward-looking but that it had a primary retrospective significance.
He states that “It is apparent that, to a considerable extent, the
Convention amounts to a registration of protest against past misdeed
of individual or collective savagery rather than to an effective
instrument of their prevention or repression. Thus, as the punishment
of acts of genocide is entrusted primarily to the municipal courts of
the countries concerned, it is clear that such acts, if perpetrated in
obedience to national legislation, must remain unpunished unless
penalized by way of retroactive laws.”
It is
important to note, moreover, that whether or not the Convention itself
applies, State practice shows that the crime of corruption can be
prosecuted by many national governments today on the basis of national
law enacted following the commission of the offence and this law can
be made retroactively. There
are many precedents of retrospective application of international law
in several countries in matters concerning crimes against humanity,
corruption and money laundering. For instance, in the case of
Regina v. Imre Finta in Canada, a trial for "crimes against
humanity" was carried out on the basis of a 1 987 Canadian statute
that permits retrospective application of international law.
Therefore, if the U.K and Nigerian laws allow retroactivity of its
anti-corruption law, the Convention can not be a barrier to its
implementation.
In conclusion, the Convention is also arguably a jurisdictional
statute which does not establish new crimes. The United States Supreme
Court faced with the question whether a jurisdictional statute may be
applied retroactively has held that a statute which confers
jurisdiction may be applied retroactively where it does not interfere
with a party’s substantive rights. Specifically, Landgraf v. USI
Film Products considered whether the U.S Civil Rights Act of 1991
could apply retroactively.
In
deciding this issue, the Court delivered a new pronouncement on the
retroactivity of jurisdictional statutes that a statute “does not
operate ‘retrospectively’ merely bec ause it is applied in a case
arising from conduct antedating the statute’s enactment, or upsets
expectations based in prior law. Rather, the court must ask whether
the new provision attaches new legal consequences to events completed
before its enactment.”
The
absence of express retroactive intent does not necessarily prevent the
court from applying a statutory provision retroactively. The Supreme
Court further explained: “While we have strictly construed the Ex Post
Facto Clause to prohibit application of new statutes creating or
increasing punishments after the fact, we have upheld intervening
procedural changes even if application of the new rule operated to a
defendant’s disadvantage in the particular case.” To this effect, the
Court noted that jurisdictional and procedural rules may apply
retroactively because they regulate ‘secondary’ rather than ‘primary’
conducts. In such situations, the Court held that “present law
normally governs.”
Kayode Oladele is a U.S based international law
attorney
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