Impunity and Immunity: When (if Ever) Should We Sacrifice Accountability for Past Corruption Crimes?

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.”

8 thoughts on “Impunity and Immunity: When (if Ever) Should We Sacrifice Accountability for Past Corruption Crimes?

  1. Very interesting post. I agree that to some extent, a certain form of amnesty is more beneficial than hard sanctions.

    Regarding the fifth point, I understand that the main rationale for amnesty would be to maintain major changes brought by a political transition. The question that I am asking myself is to what extent, if any, amnesties can inspire a transformation of situations where corruption is pervasive in the entire system? Would amnesty be an efficient anticorruption tool in transitional situations?

    • That is indeed the crucial question. My impression is that in transitional justice situations, systemic corruption of the prior regime is increasingly recognized as an important issue, for which a full and truthful accounting would be valuable (just as it’s valuable for torture and other human rights violations). But would it be worth granting some sort of amnesty in order to get more information about those sorts of offenses? Should there be some requirement not only to be truthful but to provide some form of (monetary) restitution? I’m genuinely uncertain. I’m not even sure whether the “Truth & Reconciliation” model has been all that successful even when focusing more narrowly on traditional human rights abuses. But I’m certainly open to the idea that, if it HAS been effective in addressing those issues in a transitional justice context, inclusion of corruption-related offenses might also be sensible, at least under some circumstances.

  2. The audience member’s comment that you reference—about how one can sacrifice “short-term” accountability, but never “long-term” accountability—is very interesting to me, and I too wonder exactly what it means.

    Reading through your post, I was struck by how the scenarios that you list are far more future-looking than a dogmatic emphasis on full accountability. With that in mind, perhaps the comment means that in the short-term it may be sensible to sacrifice (full) accountability; however, the reasons for this sacrifice must be to enhance accountability in the future—the long-term—by encouraging a system less prone to impunity.

    • That makes sense, and I think you may well be right about what the audience member meant by that comment. Of course, there’s something a bit unsatisfying about the formulation, in that it seems to be a bit of a rhetorical dodging of the question.

  3. My instinct is that, in general, there is value in sacrificing accountability for information. This seems like a sensible approach both in the context of your first example—flipping lower-level participants in a corrupt scheme—but also from the perspective of crafting stronger anticorruption institutions in a country. This application does not exactly map on to your second example, but follows somewhat similar logic, albeit at an earlier point in time.

    Specifically, a country that wanted to develop a new, aggressive anticorruption law, institution, or policy, would probably be better equipped to craft an effective measure if it had more information about how corruption occurred under the current regime, and might trade immunity for that information. I can understand how this proposal might rub some the wrong way, essentially immunizing known corrupt actors with the “hope” that seeing how they operated will strengthen future reforms. Perhaps no corrupt actor would actually open his or her whole “playbook” to authorities, but if that did happen, the information could be valuable enough in preventing future corruption to make immunizing earlier corruption a relatively small price to pay in the long term.

  4. Interesting blog and comments. The basic issue resolves around: Are we interested in fighting past corruption crimes or preventing the future one?

  5. To me, the biggest problem with any form of amnesty for past corruption is how to deal with the gains the corrupt individual realized. Letting him or her keep the proceeds would be awfully hard for citizens to swallow. Conditioning amnesty on returning the money will either result in few takers or invite those who seek amnesty to game the system by hiding some or all of what they stole.

    The Tunisian proposal that has drawn protests would require politicians and business people to return all money in return for amnesty. Anyone believe a Tunisian politician used to living the high life thanks to corruption will accept a life of, if not penury, at least one far beneath what he or she is used to in return for amnesty? One of two things will happen. The corrupt will accept the amnesty but give back only part of what they stole. This won’t heal any wounds as citizens will see them continuing to live above their means. Or they will simply decline the offer of amnesty and gamble they can stave off the day of reckoning with the law.

    The latter seems far more likely if the South African experience with a truth commission holds elsewhere. The only reason individuals accepted the amnesty was from a genuine fear of prosecution. Those without such a fear, military personnel mainly,never came forward.

    • As this post noted, in many cases the decision about whether to grant immunity for corrupt acts is similar or identical to the decision for other types of crimes (notably in the little fish and regime change scenarios). It seems to me that where corruption differs, is in the frequent potential to rectify the crime. When someone is physically assaulted, that assault can never be taken back no matter what happens to the perpetrator.

      But, in the case of monetary corruption, as both the original post and Rick point out, often part of the end goal is to retrieve some of the stolen assets and “undo” the crime. In some cases that can lead to a greater argument for immunity if it is accompanied by a return of assets. In other cases, when the assets are still at large, the unique aspects of monetary corruption could make it less of a candidate for immunity than other crimes.

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