Author Archives: Sarah Krys

Fighting Corruption With Art: Successfully Raising Public Awareness

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Art is “one of the best societal mediators of difficult messages — it has always created a bridge between the comprehension and the expression of critical problems in society.” So declares the 10th International Anti-Corruption Conference’s website, which organized an art program against corruption. In keeping with that sentiment, last September the Anti-Corruption Organization of Thailand (ACT) organized a “museum of corruption,” a temporary exhibition at the Bangkok Art and Culture Centre intended to raise public awareness about the extent and costs of corruption. Thailand is not the first country to undertake such an initiative. Museums of corruption (actual museums, not just temporary exhibitions) already exist in Paraguay, Ukraine and the United States, and many other enterprises that use art as a tool for anticorruption education and action are flourishing worldwide. For instance, the Open Society Initiative for West Africa has recently launched a hip hop video against corruption in Liberia, while the Inter-American Development Bank organized a cartoon contest to promote awareness and understanding of the corruption phenomenon and its harm to development. More recently, Pakistani President Mamnoon Hussain called upon poets and intellectuals to write against corruption. Other major players in the anticorruption field that have organized artistic projects include Transparency International (see here and here) and the United Nations Development Program (UNDP). In additions to these institutionalized artistic anti-corruption projects, several countries have witnessed spontaneous public art displays – in the physical public domain, usually outside and accessible to all – to promote awareness and solidarity in fighting corruption (see for example in Afghanistan and South Africa).

Understandably, some are skeptical of these initiatives, arguing that museums and temporary exhibitions are not the right forum to communicate on corruption (this was one of the criticisms of the Thai museum of corruption). One might worry that expressing anticorruption messages through cartoons and popular music won’t lead people to take the message seriously enough. (This would also be true when the artistic initiative takes a more humorous approach, as is the case for many of the anticorruption cartoons, as well as New York’s corruption museum.) And of course, nobody thinks that art initiatives on their own are enough. Yet while artistic initiatives will not by themselves solve the issue of corruption, these initiatives are not just a fad or a gimmick or a distraction. Indeed, there’s quite a bit of research indicating that these programs can be quite effective in raising public awareness on corruption. Continue reading →

Broken System: The Failure to Punish High Level Corruption at the UN

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“Is bribery business as usual at the UN?”

So asked U.S. Attorney Preet Bharara, and with good reason. Notwithstanding the UN’s protestations to the contrary, recent years have seen a succession of UN corruption scandals. Among the most infamous is the Iraqi Oil-for-Food case, in which Saddam Hussein, in collaboration with UN staff members, earned billions of dollars through kickbacks and illegal oil smuggling. Corruption in some UN peacekeeping operations is high, with new corruption cases coming to light on a regular basis. And last October, new charges of corruption were brought against (among others) a former UN General Assembly President and another UN diplomat who allegedly were engaged in an important bribery scheme.

Each time a new corruption case is exposed, the UN’s public reaction is the same: the Secretary-General states that the organization is treating the matter with the utmost seriousness and initiates an internal investigation or audit, while at the same time the organization attempts to “sweep the matter under the rug” by claiming that senior UN officials were unaware of the problem, and that this was an isolated incident involving a few bad apples, not the UN system itself. Yet given the frequency of UN corruption scandals, it is about time that the organization stops pretending that this is just a “few bad apples” problem, and try to understand why it faces these situations with such frequency.

The natural place to start is with the UN’s system for investigating and sanctioning corrupt practices, in particular the Office of Internal Oversight Services (OIOS). OIOS performs internal audits and investigations into reported violations of UN regulations, rules, and administrative issuances, and is also authorized to initiate proactive investigations to assess potential fraud risks in “high-risk areas.” OIOS’s mandate is strictly limited to administrative fact-finding; it does not conduct criminal investigations, and indeed the UN has no criminal jurisdiction over its personnel. But as an employer, the UN can impose disciplinary sanctions in response to wrongdoing or take other administrative measures. In the UN context, these administrative sanctions are particularly important because UN staff members, officials, and diplomats are granted immunity from local prosecutions, and therefore domestic prosecutions in the countries where the corruption took place can be difficult unless these immunities are waived. In such circumstances, a strong internal anticorruption system within the UN itself is even more essential to avoid impunity.

Yet although the OIOS looks good on paper, critics both outside the organization (see, for example, here and here) and inside as well, have said that the OIOS is not doing an adequate job investigating corruption and fraud. There are at least three reasons for this: Continue reading →

France’s Failure to Fight Foreign Bribery: The Problem is Procedure

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When it comes to effective implementation of the OECD Anti-Bribery Convention, France is the black sheep of the herd. In 2012, the OECD’s Working Group on Bribery’s Phase 3 Report praised France’s efforts to enact an adequate legal framework, but expressed concerns on the low number of convictions. Two years later, the Working Group reiterated its concerns that France was insufficiently compliant with the Anti-Bribery Convention, and the EU’s 2014 Anti-Corruption Report expressed similar worries. In 2015, Transparency International placed France in the category of “limited enforcer” and has stated that France had failed to prosecute foreign bribery cases efficiently. Indeed, in the 16+ years since the OECD Convention came into force, no companies have ever been convicted in France for foreign bribery, and only seven individuals have been found guilty. The only French-led conviction against a company–Safran–was overturned on appeal last January. Even in this case, on appeal, the prosecution did not seek the conviction of the corporation, stating that the conditions to corporate criminal liability were not met (the court of appeal did not rule on that specific issue, and overturned the conviction on factual grounds).

The low number of French convictions for foreign bribery offenses is not due to the fact that French corporations do not bribe. In fact, a recent study on purchasing activities in the private sector showed that 25% of the Chief Purchasing Officers in France have been offered bribes by other French companies. And French companies have often been penalized by more aggressive enforcers, particularly the United States, when they have jurisdiction. (Most recently, Alstom agreed to pay a $772 million fine for violating the U.S. FCPA by bribing officials in several countries.) While some in France have grumbled about U.S. overreach, others in France share the views of the President of Transparency International France, who declared (in reference to cases like Alstom), “It’s humiliating for everyone in France that our judiciary is not capable of doing the work themselves”.

Why is France such a laggard with respect to its enforcement obligations under the OECD Convention? The issue is not France’s domestic legislation criminalizing foreign bribery, which is more than adequate. The real issue resides in France’s failure to enforce these laws. And the explanation for this lies not in France’s substantive criminal law on corruption, but rather in a number of important aspects of French criminal procedure and prosecutorial practices. Continue reading →

Justice v. Corruption: Challenges to the Independence of the Judiciary in Cambodia

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Last month, the International Bar Association (IBA) Human Rights Institute issued a report entitled Justice versus Corruption: Challenges to the Independence of the Judiciary in Cambodia which paints a dark picture of the extent of political and financial corruption in the Cambodian judicial system. This report was prompted by the enactment of three controversial laws that enabled the Cambodian government to undermine the independence of the courts, but the IBA’s investigation went beyond these three laws to examine the judicial system as a whole, only to discover that, in addition to persistent problems of government interference with judicial independence, the entire Cambodian judicial system was riddled with both bribery and political corruption.

There are credible allegations that cases are often decided in favor of the party offering the larger bribe; Cambodian lawyers interviewed by the IBA researchers estimated that 90% of the cases heard by the courts involve bribes to judges or clerks, and that when no bribe is offered, judges often give no attention to the case, and court staff will refuse to release basic information, or give lawyers access to the case files. In addition, the report found that trainee judges are asked for large bribes to access to their professional trainings — meaning that what the report calls the “the culture of bribe giving and receiving” is taught to judges from the very beginning of their career. In addition to this widespread bribery, political corruption of the judiciary is also pervasive. The report notes suspicions of judges and clerks sometimes being given specific instructions from powerful politicians how to decide cases in which these politicians have a financial interest.

To address this widespread, systemic corruption, the IBA offers a series of recommendations. A few of the report’s recommendations are concrete and implementable. For example, report recommends that the IBA exercise influence on the Cambodian Bar Association (the BAKC) to reform itself if it wishes to remain a member of the IBA; such pressure may be help to end corrupt practices in the BAKC itself, and encourage the independence and protection of lawyers in Cambodia. Unfortunately, however, most of the report’s recommendations, while appealing in theory, are not terribly practical, at least in the context of Cambodia today. In emphasizing idealistic, aspirational recommendations, the report perhaps missed an opportunity to recommend some more concrete, practical goals that, while not fully addressing the problem, might at least have some chance of being adopted. Continue reading →