Martin Kenney is managing partner of Martin Kenney & Co., Solicitors, a specialist investigative and asset-recovery practice focused on multi-jurisdictional fraud and grand corruption cases. He is co-chair of ICC FraudNet's Task Force India.
As a Canadian I find it encouraging that my compatriots could be at the forefront of the attack on grand corruption and its perpetrators. But while the idea of Canadian backing for an international anti-corruption court is commendable, I believe the world already has existing systems in place to deal with these issues.
For example, it is likely that the nature of the criminal offences described in a recent Globe and Mail op-ed by Harvard University's Robert Rotberg already fall within the remit of the existing International Criminal Court (ICC). This court, based in The Hague, has the power to try war crimes, genocide and crimes against humanity under the Rome Statute.
Grand corruption should be considered a crime against humanity under Article 7(1)(k) of the Rome Statute, which punishes "other inhumane acts … causing great suffering, or serious injury to body or to mental and physical health." Adopting such an understanding of grand corruption, as advocated by many human-rights organizations and commentators, would place its prosecution under the remit of the ICC.
If criminals effectively suck the financial lifeblood out of a country, it leaves the country devoid of infrastructure and denies children education and the populace basic medication and health care. It leads, over all, to a torturous existence. This undeniably causes great suffering and serious injury to mental and physical health. This is why grand corruption is a slow, painful and degrading crime against humanity.
For an example of how severe the impact of corruption can be, we need only look to our neighbours in South America. The people of Venezuela are facing the collapse of the social and economic foundations of their country due to grand corruption under "Chavismo." One Caracas anti-corruption crusader, lawyer Franklin Hoet-Linares, correctly asserts that "what these men have committed is a crime against humanity. … The official who steals $1-million or $2-million is a thief, but he who takes $1-billion or $2-billion leaves the people without food, medicine or the means to live."
Regardless of who prosecutes the criminal, one of corruption's biggest harms is consistently overlooked. Putting the culprits in prison is one thing; the problem remains that the state affected is still a victim whose assets have been torn from its grasp. Inevitably, the public purse continues to suffer – even after a conviction – and particularly for the many small and comparatively poor countries with less-developed economies. For example, the $300-million loss to the people of Equatorial Guinea when a member of their ruling family salted away public funds is far more damaging than the loss of billions of dollars to a developed country would be.
The perpetrator, their family and their cronies should not be allowed to enjoy the fruits of corruption. To ensure that justice is served, it's imperative that stolen assets are recovered and brought home, and that the enablers of corruption (banks, lawyers and accountants) are sued for massive damages for their role in laundering and concealing the proceeds. In doing so, we are able to bring some measure of accountability and justice.
Why is this important?
Every time a corrupt public official slips through the net and goes on to enjoy ill-gotten gains, it encourages others to follow in their footsteps. Even when they are caught, successfully prosecuted and imprisoned, their wealth continues to buy them status in prison. It enables them to pay bribes and their families to continue living the high life.
I acknowledge the fact that many states lack the requisite expertise and finances to investigate such complex matters. If so, then it is right that the ICC should receive the additional resources necessary to take on these investigations. Or, if formed, the IACC should receive all the assistance it requires to prosecute the culprits. What I say is that there are professionals out there (such as ICC FraudNet, to which I belong) with the expertise necessary to supplement the law-enforcement side in tracking and recovering the assets.
I agree with Mr. Rotberg that the political status of the culprits should not be a bar to prosecution, be they heads of state or not. Grand corruption strikes at the very heart of an affected society. It is invariably the poorest people, lacking any meaningful voice, who are most vulnerable. The monies lost could and should have been used to improve their lot. This further vindicates my opinion that only by removing the financial incentive to commit grand corruption will there be an effective deterrent.