In an earlier post, I discussed an order by the Inter-American Court of Human Rights demanding that Brazil investigate and report on prison guards’ corruption. Mandating that a country review its own corruption seems to be a new step for an international judicial body. The approach suggests a way to more closely integrate corruption-related concerns into international human rights work: including corruption-specific mandates within broader holdings. Other international adjudicative bodies, particularly regional human rights courts, should follow this model.
The idea of directly adjudicating corruption through an international court has been floated but also strongly opposed. Some corruption commentators advocate making grand corruption a crime against humanity that could be prosecuted by the International Criminal Court (ICC). As discussed on this blog, Judge Mark Wolf has proposed an independent international anticorruption court, an idea that met with some tempered support and a good deal of opposition (see here, here, and Matthew’s concerns here). I agree that grand corruption does not belong in the ICC or an independent court. To reject grand corruption as a stand-alone offense to be prosecuted in international criminal tribunals is not, however, to reject that corruption should be addressed by international criminal tribunals where it is relevant. Existing bodies like regional human rights courts—the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the much newer African Court on Human and Peoples’ Rights, as well as other, even younger human rights bodies in Southeast Asia and the Middle East—should explicitly address corruption-related issues within the context of the large volume of human rights adjudication already taking place. As other commentators have already discussed, these regional human rights courts can fold corruption into their respective mandates and generate meaningful corruption-related law (see here, here, and here). Indeed, regional human rights bodies are already well-placed to highlight corruption where it emerges and to respond appropriately to both the existing situation and future concerns:
- First, the regional human rights courts offer accessible solutions that can be tailored to situations of ongoing corruption. These remedies should be used in innovative ways to offer concrete solutions. The special role of declaratory judgments (telling the parties what their rights are) offers the flexibility to address specific situations—demanding certain individuals come to work, recommending a certain procedural protection, or simply revealing where and how an acute failure is happening. The IACtHR has different types of measures to respond to unique situations. In the Brazilian prison investigation, it chose the unique step of mandating a report on corruption to be given to the court itself. The ECtHR too has distinctive judgments. It could, as it has before, demand investigations and prosecutions of particular actors or situations. The courts can also issue judgments for inaction. Governments are held responsible to protect human rights and to intervene when failing to do anything allows abuses to continue. The ECtHR recognizes positive obligations, meaning that “states can be obliged to act and to take active steps to ensure an effective enjoyment of the rights protected by the Convention.” Hence, letting corruption happen at any level, if it leads to rights violations, is the responsibility of the government at large.
- Second, these courts can use their flexible remedies to create preventive measures for ongoing and future violations, as the Brazilian prison order suggests. Where a domestic corruption investigation or an ICC indictment might require a fair amount of political capital that would be hard to follow up, regional human rights courts are obliged to and do handle significant caseloads of all types, including many cases involving similar issues. This is not to say that human rights tribunals are completely free from political concerns, but they may be larger ones (see a recent example here). The courts should look toward larger solutions, rather than one-off fines and, as discussed in my previous post, nebulous demands. At the IACtHR and ECtHR, such demands include requiring domestic investigation of things like political retaliation or extrajudicial killings (see here and here). Instead, where cases involve clear acts of corruption, regional human rights courts should demand some evidence be given to the court of investigation and steps taken to prevent recurrence. Where bringing yet another case before one of the regional human rights courts would be a lengthy ordeal, including the high bar of domestic remedy exhaustion, requiring a response to the court or a related body would open a conversation rather than giving a lecture.
- Third, the bodies themselves should take advantage of their unique role, being removed from domestic cultures of impunity, to pursue bold preventative and reparative solutions. All of the regional human rights courts address their holdings to countries, rather than to individuals. Where the ICC could issue an indictment against and investigate a particular government figure, the regional human rights courts demand action from a government as a whole. Regional focus also means that any call for corruption to be addressed in one situation or within one country should be repeated where similar conditions are shown elsewhere. Otherwise, the appearance of unequal treatment undercuts the legitimacy of the entire body.
If a domestic government is resistant to investigating corruption within its ranks, an international body may not have much ability to stop it immediately. Perhaps the best hope for including affiliated corruption issues in international criminal courts is awareness-raising and helping to create demand for specific reforms. The regional human rights courts could weigh in on those areas where corruption is a factor. While there is no perfect party to solve corruption concerns, such courts can help broker an approach to rehabilitation.