A few months back, Anusha made the case for why “freedom from corruption” should not be regarded as a human right. She pointed out a number of legitimate distinctions between corruption and other human rights violations, as well as practical problems with framing corruption in this way. But there are other ways in which corruption does resemble a human rights violation: namely, in the harm it causes. Like widespread human rights abuses, the harm stemming from corruption is often diffuse and difficult to quantify, often with many victims (not always identifiable) and numerous perpetrators. For practical and functional purposes, in the case of systemic corruption–as in the case of regimes with pervasive human rights abuses–it may not be possible to make reparations to all of the victims or to hold all of the offenders to account.
Thus, even if it is impossible – or undesirable – to fully integrate the anticorruption and human rights agendas, it is still worth considering what lessons we can draw from the human rights regime and incorporate into the anticorruption field. Consider, in particular, one mechanism designed to deal with instances of mass atrocities and systematic human rights violations: the truth commission. In the human rights and transitional justice context, truth commissions are temporary bodies responsible for investigating and publicizing past rights abuses committed by public and private actors. As a general matter, truth commissions prioritize gathering information and establishing an accurate record over punitive sanctions. Truth commissions also often involve a quasi-judicial element – which frequently entails granting amnesty to certain actors or referring cases to prosecutorial entities – and emphasize “bottom-up” victim participation. Certain elements of the truth commission model may be instructive in designing justice measures for corruption crimes.
- First, a truth commission’s focus on gathering information would allow it to delve deeply into complex societal issues, exploring the causes and consequences of corruption more fully than in a prosecution scenario. Such data could reveal, in an organized way, which offices are most corrupt, what form bribes are likely to take, which segments of society are most likely to behave corruptly, etc.
- Second, granting amnesty can greatly facilitate information gathering and can reduce the amount of time and resources necessary to conduct an investigation. This was, in essence, what the U.S. Securities and Exchange Commission did in the mid-1970s, when it called on corporations to come forward to reveal their bribe-paying activities abroad; the resulting information–which shocked regulators and the U.S. public alike–was instrumental in generating political momentum for passage of the Foreign Corrupt Practices Act in 1977.
- Third, truth commission amnesties have a strong public aspect that contributes to collective justice. Amnesties often can and should be accompanied by required admissions of guilt, commitments to reform, limitations on holding public office, and, at times, restitution payments.
- Fourth, and perhaps most important, truth commissions allow for community members to participate in accountability mechanisms by sharing their own stories in a formalized process. On a larger scale, a truth-seeking model would nationalize anticorruption discourse. All of these traits would help to conserve prosecutorial and judicial resources.
To be sure, there are key distinctions between large-scale human rights abuses and widespread corruption that render the truth commission a less effective tool in the latter setting. Absent the transition that is at the heart of transitional justice measures, there is little reason to expect sudden and comprehensive change to the status quo. Without this important adjustment, a commission’s political neutrality would be more suspect. The absence of a logically delineated timeframe for reviewable misconduct would make any temporal restrictions, at best, arbitrary and, at worst, political. Additionally, truth commissions depend on voluntary participation – frequently in exchange for amnesty. But this inducement is only suitable if the threat of detection, prosecution, and punishment is credible, which is unlikely in institutionally weak countries.
The limited track record of experiments with truth commissions in the anticorruption context has been rocky at best. When President Benigno Aquino of the Philippines attempted to establish an anticorruption truth commission, it came under attack for many of the reasons discussed above. And in Bangladesh, although the reform-minded caretaker government established an anticorruption-specific truth commission that offered amnesty in exchange for confessions and deposits of stolen assets, anticorruption advocacy groups like Transparency International lambasted the amnesty provision, and the commission was eventually ruled unconstitutional.
Nevertheless, the problems with anticorruption truth commissions can be overcome in some circumstances. Under the right conditions, a truth commission could help countries with early commitment and experience in fighting corruption to jump forward. Temporally, the commission should encompass both the current and, if in the not-too-distant past, the former regimes so as to protect against allegations of leniency (vis-à-vis current officials) on the one hand and witch-hunting (vis-à-vis former officials) on the other. The subject matter jurisdiction of the commission should likely also be limited – low-level, dispersed bribery is more amenable to the commission model than, for example, procurement fraud.
Anticorruption truth commissions should supplement, not duplicate, the work of other anticorruption bodies, particularly given the proliferation of such entities and already existing challenges arising from overlapping competencies. Truth commissions as anticorruption tools are not without flaws but, under certain circumstances, they could serve to fill a gap in modern accountability efforts. And while anticorruption advocates may balk at the amnesty provisions that are often an essential element of these systems, as the experience with systemic human rights violations shows, this approach is sometimes preferable, in the long term, to an unrealistic “zero tolerance policy.”
Nice analysis. Check out my blog if you’ve got the time. I’d appreciate it.
Interesting post – although you might want to revisit the assumption that most truth commissions are linked to amnesties. For corruption-related truthseeking, it might also be useful to think about what Chapter V of the UNCAC allows States to do with respect to, for example, whistleblowers – which isn’t necessarily amnesty. Finally, you might find this useful http://www.huffingtonpost.com/david-tolbert/tunisias-reconciliation-b_b_7906230.html
Liz, thought you would be interested in the workshop at the IACC meeting in Malaysia next week described below.
I have always been skeptical of amnesty for corrupt officials because of the difficulty of ensuring those granted amnesty will observe the terms. Compliance by human rights abusers is easy to secure. A mass murderer or torturer confesses his or her crimes and is granted amnesty conditioned on never committing mass murder or torturing people again. Hard to imagine the one receiving amnesty would ever engage in such acts again. And if they did, the violation would be easy to observe.
But now consider amnesty for corrupt officials. What do we require in return for the grant of amnesty? That they return all the money stolen? How can we be sure they will? How do we know how much should be returned? If we insist they live in penury as a condition for receiving amnesty, how likely is it that they will accept those terms? If we say, okay you can keep $1 million, or some such sum, how likely is it citizens will accept the outcome?
IACC Workshop: Breaking the Cycle of Impunity: Why truth telling and accountability for past crimes matters
Jose Ugaz, Chair, Transparency International (Peru)
Gladwell Otieno, Executive Director, African Centre for Open Governance (Kenya)
Osama Diab, Egyptian Initiative for Personal Rights (Egypt)
Youseff Belgacem, Project Coordinator, IWatch (Tunisia)
Lisa Stensrud, Policy Director Anti-Corruption, NORAD & Corruption Hunters Network (Norway) – To be confirmed
Hennie van Vuuren, Research Associate, Institute for Justice and Reconciliation (South Africa)
Entrenched networks of corrupt political and economic elites show great resilience in weathering complex political transitions. This is a result of the inability or unwillingness of many countries to tackle such forms of systemic corruption amongst the powerful. This often takes place in a context of complex political trade offs between an old corrupt autocratic regime and a new democratic political order promising change. This session aims to contribute to an emerging international debate on the need to focus on economic crime during (and after) transitional justice processes. This has received insufficient airing in either transitional justice or corruption debates. Confronting this issues is a key element of ensuring that cycles of impunity involving corrupt networks are broken, or at least sufficiently slowed down to allow for greater democratic participation. Without it social justice and ultimately a restoration of trust amongst the citizenry are difficult to achieve. The session will discuss comparative experiences in an interactive Q&A format. It will propose ways in which the IACC community of practitioners can collaborate in changing public discourse on this issue. Participants are encouraged to contribute in answering the central question: Why do attempts to challenge old corrupt networks of power and privilege fail and what can we do to change this?
Thank you Elizabeth for this great post.
I wonder if transitional justice could also approach, at the same time, both Human Rights violations and large scale corruption. Indeed, in many cases, accountability for Human Rights abuses and economic crimes are closely connected and it could be more efficient to address both at the same time.