The literature on grand corruption, a/k/a kleptocracy or state capture, continues to expand at an ever-increasing rate.

Investigative exposes, think tank and NGO policy papers, academic books and articles, court cases and legal commentaries, and yes, blogs like this one make it hard for full-time students of the phenomenon, let alone policymakers, journalists and activists, to stay abreast of the learning this vast outpouring of thinking is producing.  

Thanks to University of California Law Professor Naomi Roht-Arriaza‘s new book, what we know about grand corruption, what can be done to curb it, and how to make its victims whole is now available in a single, readable, useful volume.

The title – Fighting Grand Corruption: Transnational and Human Rights Approaches in Latin America and Beyond – advertises two of its most important contributions.

One is the emphasis on multilateral efforts. Where national actors – politicians, criminal gangs, crooked businesses – have taken control of all or part of the machinery of government, domestic law enforcement, prevention mechanisms, and citizen activism will be of little or no use. The only answer, as Professor Roht-Arriaza makes plain, is to mobilize outside pressure: “smart” sanctions by other states, regional and international courts, and other transnational mechanisms to force changes in national institutions and the incentives their leaders face.

A second contribution, and one where Professor Roht-Arriaza’s long experience as both a human rights lawyer/scholar and activist shines, is showing how the long struggle to advance human rights intersects with, complements, and offers innovative approaches to combatting grand corruption. Especially, as described below when it comes to compensating those injured by corruption.

Fighting Grand Corruption will be an invaluable reference for policy makers, lawyers, and advocates. It summarizes and assesses a broad range of initiatives for attacking grand corruption: from bringing cases to multinational bodies to asset seizures to third country prosecutions of those Sarah Chayes memorably dubbed thieves of state. The summaries are succinct but thorough, the analyses never shallow or superficial.

Take two issues that have occupied much space on this blog, i) the use of foreign prosecutors in Guatemala and ii) fledgling attempts to recover damages for victims of corruption as either an adjunct to a criminal prosecution or in a separate civil suit.

Foreign prosecutors. Still one of the boldest efforts to bring kleptocrats to justice, the Commission Against Impunity in Guatemala, known by its Spanish initials CICIG, was created to deal with the gross human rights abuses plaguing the country in the aftermath of its civil war. Backed by the authority of the UN Secretary General and with support from the U.S. and EU, it was staffed by non-Guatemalan prosecutors. The office could investigate criminal complaints and present its findings to the state prosecutor. If he decided to bring a prosecution, CICIG lawyers could participate as a private prosecutor (querellante adhesive), reviewing case files, presenting witnesses, and fully participating in the proceedings. While its initial focus was gross human rights abuses, the close links between human rights crimes, narcotrafficking, and corruption meant that its remit soon expanded to include all three offenses.

CICIG’s first head, Spanish antiterrorism prosecutor Carlos Castresana, initially won the support of Guatemala’s business elites by successfully repelling the growing takeover of territory by drug traffickers. But as the anticorruption campaign expanded to include prosecuting business illegally financing political campaigns, his successors lost the support of this important constituency, which ultimately used its connections in Washington (including with then Senator Marco Rubio) to halt U.S. support and thus embolden then Guatemalan President Jimmy Morales to dissolve it. Despite its short lifespan, a little less than 12 years, the Commission compiled a spectacular record, investigating some 124 complex cases that resulted in over 400 criminal convictions including presidents, legislators, judges, and business moguls.

CICIG friends and supporters argue to this day whether a less aggressive attack on campaign finance violations might have saved the Commission to fight another day. While giving its last head his due, Professor Roht-Arriaza’s analysis suggests how a more politically attuned leader might have navigated Guatemala’s choppy political waters. It is a must read for anyone designing or heading a future CICIG-like entity.

Damages for corruption victims. The case for compensating those injured by corruption rests on both moral and instrumental grounds. All legal systems recognize what Aristotle termed the principle of “corrective justice,” that persons injured by the wrongful act of another are entitled to rectification or correction, to be restored to the position they were in before the injury. Corruption victims are no different from those hurt by a car recklessly driven or machinery negligently installed and should thus be treated no differently.

On instrumental grounds, the availability of damages for corruption supplements the deterrent effect of the criminal law. Not only must those contemplating a corrupt act consider the risk of criminal prosecution, they should too face a real risk of having to pay victims damages. Where prosecution services are politically subservient or institutionally weak, independent action by victims can be especially critical.

Chapter Seven, “Reparations for Victims of Grand Corruption: Applying a Human Rights Framework,” is a thoughtful, detailed analysis of the legal theories developed to compensate victims of human rights abuses and recent efforts to apply them to corruption offenses. Those reared in common law systems with their emphasis on recovery for identified individuals will gain much from the discussion of how civil law concepts of diffuse and collective damages can be applied to compensate large numbers harmed by corruption. Lawyers from every legal tradition trying to convince courts that corruption victims are indeed no different from victims of car crashes or industrial accidents will find a goldmine in the precedents and resources cited in the footnotes will find a goldmine.

The several case studies illustrating the different principles bring alive make what could be a dry legal discussion. And offer remedies that anticorruption activists should push everywhere. Most memorable is the sanction Guatemala judge Pablo Xitumul imposed on a corrupt mayor: post a sign in the town square apologizing for embezzling public funds and promising never to do it again. A fitting punishment and one that, as Professor Roht-Arriaza  reminds, underlines the fact that remedies for corruption should not be limited to hard cash. As the experience with human rights cases show, what is most important to victims is often intangible: acknowledgement of wrongdoing, truth telling, an apology.

Some sections of Fighting Grand Corruption offer timeless lessons: from the need to keep an eye on the politics of corruption fighting to the place of corrective justice when pursuing corrupt actors; others provide snapshots of fast developing areas: the social use of recovered assets, creative applications of diffuse and collective damage concepts. The latter likely to develop all the faster thanks to her marvelous book.

Would it be too much to ask Professor Roht-Arriaza and publisher Cambridge University Press when a second edition is coming out?