I’ve been meaning to write a bit more about last month’s International Anti-Corruption Conference (other than my snarky reflections about anticorruption conferences generally). The conference theme was “Ending Impunity,” and indeed most of the panels and speeches emphasized, in one way or another, the importance of ending the culture of impunity and holding corrupt actors (criminally) accountable for their actions. I couldn’t agree more about the importance of ending the culture of impunity. Indeed, I suspect few people would dispute that objective; the controversies, such as they are, involve questions of means. And as a general matter, I’m also all for accountability. Who wouldn’t be? But here my commitment is more qualified, and I think the issue is a bit more complicated then some of the rhetoric sometimes implies. In fact, in the context of corruption offenses, there may be sometimes be good, or at least plausible, reasons for sacrificing accountability in order to advance some other interest.
I recognize that statement may be controversial, perhaps even heretical. Is it really ever OK to insist on less than full accountability for past corruption crimes? If so, when? The first panel I attended at the IACC, entitled “Breaking the Cycle of Impunity: Why Truth Telling and Accountability for Past Economic Crimes Matters,” brought these difficult questions to the fore. The four excellent panelists (Hennie Van Vuunen, Osama Diab, Gladwell Otieno and Transparency International Chair Jose Ugaz) all came out (unsurprisingly) against impunity and in favor of accountability. But as the subsequent discussion revealed, the impulse to hold the corrupt (fully) accountable sometimes conflicts with other legitimate interests. Although everyone agrees that those who commit corruption offenses should never have impunity, there are reasonable arguments for sometimes granting them (full or partial) immunity. Consider a few possible scenarios in which one might be tempted to exchange (full) accountability for something else:
- First, law enforcement officials might offer immunity, or favorable plea bargains, to induce some corrupt actors to provide evidence and testimony against other corrupt actors. Sometimes, the strategy is to “flip” lower-level participants in a corrupt scheme in order to get evidence on the ringleaders (who would otherwise be impossible to prosecute). This, of course, is a standard strategy in prosecution of organized crime groups, though in some countries it remains controversial. Additionally, sometimes law enforcement officials will promise leniency or immunity to the first of a group of co-conspirators who comes forward, in order not only to gather evidence on past crimes, but to deter future unlawful conspiracies or transactions. These techniques can be defended as maximizing the effectiveness of anticorruption enforcement efforts—as increasing overall accountability. But we must nevertheless acknowledge that they necessarily entail some sacrifice of (full) accountability for the individual wrongdoers granted leniency. In that regard, it was interesting and revealing that Mr. Ugaz, who came out strongly in favor of (criminal) accountability for those who commit corruption offenses, also strongly endorsed plea bargaining as an essential tool in these efforts.
- Second, we might sacrifice accountability for past crimes in order to mitigate political resistance to new and more aggressive anticorruption laws, institutions, and policies. That is, governments might implement an amnesty (either formally, through a law or regulation, or informally, though the exercise of prosecutorial discretion). Some of the more successful anticorruption agencies have in fact done this. Hong Kong is perhaps the most well-known example: Shortly after the establishment of Hong Kong’s Independent Commission Against Corruption (ICAC), the government faced a near-rebellion among police officers, many (perhaps most) of whom had participated in corruption networks that were widespread before the ICAC’s establishment. To quell the unrest and ensure that the ICAC could get off the ground, the agency made clear that it would not pursue corruption offenses that pre-dated the ICAC’s establishment (even if they were technically illegal at the time), unless those offenses were particularly egregious. In other words, the rank-and-file cops wouldn’t need to worry, so long as they kept their noses clean going forward. There are other examples as well. Although we can of course criticize these sorts of decisions as misguided, they are at least reasonable strategic decisions under the circumstances. Again, we can justify these sorts of formal or informal amnesties as ways to maximize overall accountability for corruption—by allowing a new, more robust anticorruption agency to succeed—but nevertheless it’s hard to dispute the fact that an amnesty, perhaps by definition, entails a decision to forgo accountability for at least some corrupt actors.
- Third, we sometimes sacrifice (full) accountability in order to secure the speedier resolution of disputes, at lower cost to the government. This happens all the time (at least in some systems) when law enforcement authorities settle cases. Asset recovery provides a particularly nice illustration of the issue. Ideally, countries would like to recover all of the money stolen by former kleptocrats. But that can be very hard, taking years or decades, with uncertain prospects of success. So, some countries are tempted to cut a deal with these former leaders (or their families). Is that OK? Many people (including past contributors on this blog) say no, and I respect that argument. But it seems to be a hard question, and I think that an unyielding commitment to “full accountability” (in the form of 100% recovery) might be counterproductive.
- Fourth, another motive for settling for something less than complete accountability might be to achieve “closure”: to encourage those who have committed malfeasance to provide some recompense, and then be secure in the knowledge that they are no longer liable, so they can accept a new status quo rather than resisting. “Reconciliation Bill” proposals in post-Arab Spring countries—most notably Tunisia and Egypt—provide possible illustrations. Though the details differ somewhat, the proposed bills in these countries would allow those who committed financial crimes in the past to pay back what they stole, and then be immune from further prosecution. Proponents of these proposals argue that they would allow these overburdened judicial systems to resolve these backlogged cases, would ensure the state recovers a larger share of stolen assets at lower enforcement cost, and would avoid protracted political battles. Others, including Osama Diab on the IACC panel, strongly oppose these measures as an attempt by corrupt elite networks in each country to avoid accountability. I don’t know nearly enough about these specific cases to have a view one way or the other. Mr. Diab and other opponents may well be right. But at least in principle, something like a reconciliation bill could perhaps sometimes be justified, even though it entails a sacrifice of accountability. At least I tend to think so.
- Fifth, in some extreme cases—generally those involving a major political transition—the desire to get a full accounting of malfeasance under the earlier regime, and to promote reconciliation, may justify the creation of institutions that offer full or partial amnesty in exchange for a truthful accounting of past crimes. This model—most strongly associated with South Africa’s Truth and Reconciliation Commission (TRC)—usually focuses on human rights violations, but as Liz noted in her post a few months ago, it’s at least possible to imagine the “truth commission” model extending to acts of corruption as well. There are, of course, questions about whether these institutions are actually worthwhile; as a South African member of the IACC panel audience noted, the TRC seems to be much more celebrated outside South Africa than inside. Nevertheless, as Liz pointed out in her post—and as many of the IACC panelists seemed to agree—in a transitional justice setting truth-telling may be as important for past corruption crimes as for past human rights violations. And it will be very hard to encourage large numbers of people to be fully forthcoming about their past transgressions if they are not offered some sort of legal immunity. So it seems to me that the subtitle of the IACC panel (“Why Truth Telling and Accountability for Past Economic Crimes Matters”), while true, contains an inherent tension: it may be hard to get full truth telling if one insists on full accountability.
My larger point here is that, although we all can and should endorse efforts to end the culture of impunity that produces systemic corruption, the questions about when we should insist on full accountability, and when we can legitimately sacrifice accountability for some other goal, are much harder. I think perhaps there’s sometimes a reluctance to address that latter problem head-on. For example, the set of “official” recommendations that came out of this IACC panel included the statement that “prosecutorial approaches are always preferable [in a transitional justice situation] in order to stem impunity from past [corruption] crimes, but full disclosure and truth-telling for past crimes is an essential element of any transitional justice process” (emphasis mine). If there’s a trade-off (at least sometimes) between insisting on prosecution and encouraging truth-telling, it’s hard to know what to make of this recommendation. Another audience member at the panel (I believe it was Patrick Alley of Global Witness) suggested that one can sacrifice “short-term” accountability for other purposes, but it’s never OK to sacrifice “long-term” accountability. I confess I don’t quite know what this means, though I would love to hear from others who have thoughts on this.
My bottom line (unsatisfying, I realize) would probably be: “Impunity? Never! Immunity? Maybe, sometimes, it depends on context.”