ICC Assembly of States Parties Symposium: Economic Acts as Criminal Acts

Throughout the 18th ICC Assembly of States Parties, IntLawGrrls is welcoming members of the Canadian Partnership for International Justice as guest bloggers, reporting directly from The Hague. Today, IntLawGrrls welcomes Morgane Greco, an International Studies Master’s degree student from University of Montreal.

MorganeMorgane holds a Bachelor of Public Law and a Bachelor of Political Science from Lyon II University in France. Thanks to the ERASMUS+ Program, Morgane also spent one semester in Nicosia at the University of Cyprus, where she studied the Cypriot post-conflict society. She is currently articling at the United Nations’ Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict in New York and writing a Master’s thesis about sexual violence in the Eastern part of the Democratic Republic of the Congo.

Morgane’s post discusses a December 3rd side-event on “The prosecution of economic and financial crimes: towards an extension of the ICC’s jurisdiction?”. Organized by the

Side-Event Dec 3

(Twitter @AFP-CU)

Association française pour la promotion de la compétence universelle, it featured Mr. Oliver Windridge, lawyer and senior advisor for the UK-based organization The Sentry; Ms. Suncana Roksandic Vidicka, assistant professor at Zagreb University; and Mr. Richard J. Rogers, lawyer and founding partner of the organization Global Diligence. Ms. Elise Le Gall and Laureen Bokanda Masson, attorneys-at-law at the Association française, moderated the discussion.

Panelists addressed whether goals of international law and justice can be achieved if serious and widespread economic criminal acts occurring in pre-conflict, conflict or post-conflict contexts are not prosecuted. They also discussed whether serious economic criminal offences can constitute crimes under international criminal law, and what would be the most appropriate economic offence(s) to be considered as crime(s) under international law.

Grand corruption is a threat to world peace and security…

Definitions of grand corruption

According to Transparency International, grand corruption is “one of the great unresolved legal challenges of our day.” In the United Nations Convention Against Corruption (UNCAC)’s foreword, the Former United Nations Secretary General, Mr. Kofi Annan defined corruption as “an insidious plague that has a wide range of corrosive effects on societies.” It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and enables organized crime, terrorism and other threats to human security. The UNCAC’s foreword also explains that corruption is a key element in economic underperformance, and a major obstacle to poverty alleviation and economic development. Transparency International stresses that grand corruption corresponds to the abuse of high-level power that benefits the few at the expense of the many. The Sentry also defines the term of grand corruption as “a broad range of offenses, including bribery, embezzlement, trading in influence, misappropriation of state funds, illicit enrichment, and abuse of office committed by high-level public officials or senior officers of state-owned entities.”

At the side-event, Mr. Richard J. Rogers precised that such corrupted states are “kleptocracies”, which means, according to the Cambridge Dictionnary, “a society whose leaders make themselves rich and powerful by stealing from the rest of the people”. This definition entirely corresponds to Mr. Rogers’ words, who explained that such states tend to be involved in national and international networks aiming at moving money around and getting wealthier, while the population lives in poor conditions. Ms. Suncana Roksandic Vidicka further explained that grand corruption cannot be characterized as a Third World phenomenon, because the problem is global, depending often on multinational corporations that knowingly exploit, support and profit from kleptocracy, often making huge off-the book payments to corrupt leaders in exchange for deals granting access to natural resources or arms markets.

Characteristics of grand corruption white-collar crime

Grand corruption works thanks to deeply developed national and international networks, and is facilitated by new technologies of information and communication. Such white-collar crimes cause serious and widespread harm to individuals and societies, and also often goes unpunished. Ms. Suncana Roksandic Vidicka pointed out that some companies and business groups are way richer than states, making them highly powerful actors. In its 2011 report titled “The rule of law and transitional justice in conflict and post-conflict societies” the UN Secretary-General explained that transnational organized crime is often rooted in conflict and post-conflict settings, constituting an emerging threat to peace and security, development and the rule of law. Moreover, as Ms. Vidicka enlightened, global corruption is also allowing warlord to sustain longer on power.

… partly responsible for conflict-related sexual violence in the Democratic Republic of the Congo…

 With 80 million hectares of arable land and over 1,100 listed minerals and precious metals, the Democratic Republic of the Congo has the potential of becoming one of the richest economic powers on the continent, and a driver of African growth. Nevertheless, the reality is drastically different. This is the paradox of the Democratic Republic of the Congo.

A state rich in natural resources

As mentioned by the Enough Project report, the Democratic Republic of the Congo’s natural wealth reaches an estimated $24 trillion. Yet, the country has been plagued with armed conflict, political violence, and grand corruption for decades. Serious human rights violations are symptoms of Congo’s long tradition of violent kleptocratic regimes that have repressed civilians and hijacked the state for personal wealth and power purposes. Four minerals have fueled and continue to help sustain armed violence in Congo. During former President Joseph Kabila’s tenure, up to $4 billion per year went missing or were stolen due to the manipulation of mining contracts, budgets, and state assets. This follows the trend set by many Congolese officials through history, including King Leopold and the Belgian colonial authorities, Mobutu Sese Seko, and Joseph Kabila’s father Laurent Desire. These leaders’ international partners have also significantly benefited from this corruption.

One of the poorest countries in the world

In September 2019, the International Monetary Fund had qualified the DRC as one of the poorest countries in the world despite a large endowment of natural resources, while reminding that it has been prone to violent conflict over the years. Throughout the first decade of the 2000s, armed conflict and sexual violence in DRC were increasingly linked to exploitation and trade in “conflict minerals.” In 2000, the United Nations Security Council authorized the establishment of an “Expert Panel” to investigate the links between “illegal exploitation of natural resources” and armed conflict. As Professor Séverine Autesserre argues, such preoccupations with conflict mining and sexual violence became woven into a single narrative of the DRC conflict as caused by “the illegal exploitation of natural resources,” the most significant consequence of which was the “sexual abuse against women and girls.” While mining can be identified as one of the main causes of the Congolese conflict, it should be reminded that this situation is complex and cannot be limited to mineral resources only.

… and should be prosecuted at national and international levels.

At the ASP side-event, all panelists raised important questions related to the prosecution of white-collar crimes. They outlined the existing mechanisms addressing grand corruption and pointed at specific issues hindering the effective prosecution of economic and financial crimes.

Existing mechanisms addressing grand corruption

Some international regulating organizations already exist to deal with these delicate issues: we can cite as an example the organization Financial Action Task Force, which fight money laundering and financing terrorism, pursuant to the 2005 UN Convention Against Corruption.

States have also created mechanisms to address the issue. The United States Department of the Treasury or United Kingdom sanction regime can also target those responsible for human rights violations and corruption. National law enforcement can play a great role, as in the United Kingdom, where account freezing orders can be delivered to stop money from being transferred between accounts.

The difficult prosecution of severe economic and financial crimes

According to Mr. Richard J. Rogers, kleptocrats, understood as leaders who makes themselves rich and powerful by stealing from the rest of the people, fear to get in court if they lose power. While kleptocrats are in power, judges and prosecutors can be reluctant to carry judicial proceedings against them as the judicial body is often corrupted as well.

Ms. Suncana Roksandic Vidicka explained that a majority of illicit operations and economic and financial crimes are only prosecuted at national level. She cited some cases about corporate responsibility in war crimes, such as Khulumani (United States), Sanader (Croatia), Kiobel v. Royal Dutch Petroleum (United States), Lafarge (France), Lundi Petroleum (Sweden), and Guus Kouwenhoven (Netherlands). The assistant professor also pointed out that national authorities can interfere in proceedings carried out at the national level, thus hindering the effective prosecution of these crimes.

 CONCLUSION AND SIDE EVENT OVERVIEW

As emphasized by Ms. Suncana Roksandic Vidicka, corruption is used by state officials to hold on to power. These officials are more likely to be prosecuted when they lose power, as illustrated by the case of former Sudan leader Oman Al-Bashir. In order to hold more individuals in power accountable for those crimes, and to break the illicit networks, civil society needs to advocate for corporate transparency before pressure groups such as the African Union and the European Union. Additionally, the civil society have to push for prosecution both at national, regional and international levels. To that end, Ms. Suncana Roksandic Vidicka presented some proposals of economic and financial offences that could eventually become part and parcel of international law. Such acts could notably constitute serious violations of the 1966 International Covenant on Economics, Social and Cultural Rights, crimes against future generations, economic oppression, indigenous spoliation, illegal enrichment, or grand corruption.

Lawyer Mr. Olivier Windridge seeks accountability for all crimes that have economic and financial aspects. According to him, the world needs a first successful case dealing with economic and financial crimes, at international level. In that respect, fighting white collar crimes before the ICC would be a great step ahead.

 The author’s attendance at the 18th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

CPIJSSHRC

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