GAB is pleased to welcome this guest post by Ken Hurwitz, Senior Legal Officer, Anticorruption, the Open Society Justice Initiative, announcing the publication of a series of papers on civil society and anticorruption litigation sponsored by the Initiative:
Those of us working with civil society groups that seek to combat transnational grand corruption have what might be called a love-hate relationship with the law. Yes, sometimes we can push magistrates and prosecutors to hold perpetrators to account, provided the right conditions are met. But at the same time we too often see existing law and law enforcement mechanisms protecting those responsible for high-level corruption: bribing business actors, self-dealing kleptocrats, and the financial, legal and business intermediaries who often profit from and facilitate the crime.
This post introduces a series of papers the Open Society Justice Initiative commissioned to explore how civil society can see that the law holds the corrupt to account rather than protects them from any sanction.
We who put our faith in the law are involved in a struggle to negotiate these challenges, seeking innovative legal approaches that seek to extend existing law and practice, in the cause of greater economic justice. On one level, public advocacy and meaningful dialogue with law enforcement and political decision makers more generally are critical to press for, encourage, and support the political will to prosecute grand corruption. At the same time, even from a purely technical standpoint, investigating and prosecuting these kinds of complex, secretive, generally multi-jurisdictional crimes raise particularly knotty legal and evidentiary hurdles as well. As is increasingly recognized by the public and by law enforcement itself, civil society has a key role to play in helping to break the logjam of business as usual, and ensure accountability for grand corruption.
Ten years ago, in an effort to share knowledge, the Open Society Justice Initiative published a snapshot of the state of this legal struggle, producing Legal Remedies for the Resource Curse, which we described as “a digest of practical experience in using law to combat corruption across jurisdictions,” focused on extractive industries. The book included summaries of prevailing international and national law and possible legal recourses, together with thumb-nail sketches of key cases such as France’s Elf Aquitaine scandal in the 1990s, and the U.S. investigation into Riggs Bank in Washington D.C.
Much has changed over the past ten years. There have been notable successes spurred by civil society efforts, notably the bien mals aquis cases in France. In Switzerland, TRIAL has sought, so far unsuccessfully, to initiate an investigation of the leading gold refiner, Argor Heraeus, on charges of profiting from pillaged gold from eastern Congo. We at the Justice Initiative continue to support efforts in Spain to prosecute the laundering of corruptly acquired funds from Equatorial Guinea.
In order to take stock of where we stand, the Justice Initiative is publishing papers it commissioned from global activists, legal experts and practitioners on civil society and anticorruption litigation. Many of them were initially written for a day of discussions on the worldwide legal fight against high-level corruption organized by the Justice Initiative and Oxford University’s Institute for Ethics, Law and Armed Conflict, held in Oxford in June 2014. Our hope is that this new series of papers will function as a kind of Legal Remedies – the Sequel, providing us all with a survey of current thinking on legal strategies that worked, and those that didn’t.
The first of those papers, published this month, is from Matthew C. Stephenson, Editor-in-Chief of this blog, who presents a valuable survey of the vital question of “standing” in anticorruption litigation. “Standing doctrine,” he writes, “is of particular relevance to lawsuits challenging corruption, or failure to act against corruption, because in many such cases it is difficult to demonstrate a direct connection between the defendant’s unlawful conduct and an injury to the would-be private complainant.”
We plan to publish further papers in this series every month, and invite discussion within the community of readers of this blog. At the end of the process, we plan to publish the collected papers in book form.