Category Archives: Commentary

FIFA’s Faustian Bargain: Corruption for the Cup?

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In a Road to Damascus twist, on Tuesday FIFA President Sepp Blatter asked the Swiss government to launch a criminal investigation into corruption related to Qatar being chosen to host the 2022 World Cup. This unprecedented move comes on the heels of a week of backlash to the FIFA Ethics Committee’s final conclusion on the Qatar question: “The potentially problematic facts and circumstances identified by the report concerning the Qatar 2022 bid were, all in all, not suited to compromise the integrity of the 2018/2022 bidding process as a whole.”  These “potentially problematic facts” include a swath of bribes (“improper payments”) paid by Mohamed bin Hamman, a chief supporter of the Qatari bid and former Asian Football Confederation president, which the report concludes were not directly related to securing the Cup, as well as payments by Qatari officials themselves, which made a “negative impression” but did not technically fall afoul of FIFA rules. The Committee’s decision was quickly and repeatedly slammed as a farce, and was followed by strong calls for the investigative report upon which it was based to be made public. Blatter adamantly refused to release the report, which made it all the more surprising when he seemed to go a step further by calling for the Swiss Office of the Attorney General to investigate. Should a criminal investigation proceed, not only would the government’s findings be made public, but corrupt FIFA officials would find themselves facing something entirely new: the pinch of handcuffs rather than a pinch to their finances.

While FIFA lodging the criminal complaint should be applauded, singing halleluiahs over Blatter’s conversion to the church of anticorruption would be a bit premature. In fact, this may be his most strategic move yet.

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More on CPI Changes Over Time (or Not)

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OK, in my post from a few weeks back, I asserted that year-to-year changes in a country’s Corruption Perceptions Index (CPI) score are not meaningful, even after the thoughtful and welcome changes that Transparency International made to its methodology in 2012. My concern was — and remains — that the underlying data sources that TI uses to create the index are themselves not likely to be comparable across years, which means that the CPI inherits the problem. But for purposes of this post, I’m going to completely disregard my own warning in that earlier post, and take a look at whether there have been fact been any notable changes in individual countries’ perceived corruption between 2012 and 2013.  Based on a very quick scan of the data, the answer appears to be (mostly) no.

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Better Training for Anticorruption Investigators: Another Dull, Boring, Humdrum, Modest, Unimaginative Proposal to Combat Corruption?

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U.S. Federal Judge Mark Wolf’s proposal to create an international court for corruption crimes was recently the subject of a briefing organized by a commission of the U.S. House of Representatives.  The briefing was the latest example of the attention Judge Wolf’s recommendation for fighting corruption has garnered, attention that has included an appearance on public television where he extolled the merits of his proposal and an interview in a serious policy journal where he expanded on his idea for the court.

Given Matthew’s devastating critique of the court proposal, the attention the judge’s idea continues to attract is surprising to say the least.  What it no doubt reflects is the publicity value of an idea that, at least on its face, appears to be an innovative, imaginative, and “outside the box” way to fight corruption.  Given this media bias, it would do no good to point to further flaws in the judge’s idea (indeed one might write that it would be blogging a dead horse to do so).  What I intend here instead is to protest the media bias for headline grabbing ideas to combat corruption by advancing one that is dull, boring, humdrum, modest, and unimaginative.  The proposal is thus diametrically different in PR value from the judge’s.  It also differs in two substantive ways: it is 1) realistic and 2) will help reduce corruption if followed.

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Can a Private Right of Action Solve State Capture in the Philippines?: A Skeptical View

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Last month, as a part of the LIDS Global initiative (discussed here), a research team at the University of the Philippines (U.P.) put forth an ambitious legal proposal to combat corruption in the Philippines. The centerpiece of the proposal is a private right of action that would allow individual citizens to bring civil claims against public officials for violations of the Philippines’ Anti-Graft and Corrupt Practices Act. The proposal is designed to overcome the problem of “state capture”–the shaping of laws, rules, and regulations through illegal and non-transparent payments to public officials. Because state capture is so severe in the Philippines—reaching even high-ranking officials within the country’s own anticorruption agencies—citizens cannot “rely solely on the political will of government officials to prosecute their peers in the government.” The private cause of action is intended to address (or at least circumvent) this problem by enabling private citizens injured by corruption to go directly to court, without having to rely on public enforcers.

While I agree that state capture presents a huge problem for anticorruption efforts, I’m skeptical that the proposed private right of action will be effective–at least in the Philippines. The roots of my skepticism are threefold: Continue reading →

Investment Arbitration as a Check on Corruption: The Yukos Award

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In a previous post on this blog, Sam raised the possibility that under the logic of World Duty Free v. Kenya, investment treaty arbitration rules might actually encourage state officials to engage in corruption, because corrupt acts by an investor (even when the state is also implicated) can be used to escape state liability in investment arbitration. Even if Sam’s point is true, however, it is important to acknowledge that investment arbitration can be a check on corruption in many instances. In fact, as the Yukos v. Russian Federation award issued against the Russian government this past summer demonstrates, Sam may be pointing out the exception, not the rule. Indeed, this $50 billion award – the largest international arbitration award in history – demonstrates the power of investment arbitration to bring corruption to light and act as an outside check on corrupt states. Continue reading →

Should Anticorruption Agencies Be Able to Veto Cabinet Appointments?: The Case of the Indonesian KPK

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Independent anticorruption agencies (ACAs) have become a vital component for many countries in combating corruption. Generally, these ACAs function like independent police or prosecutors, taking on one or both of those roles in settings where the ordinary law enforcement apparatus cannot be relied on to investigate, arrest, and prosecute corrupt officials. In addition to these prosecutorial responsibilities, ACAs sometimes oversee asset disclosures, and may also perform a public education function. But for the most part, ACAs do not play a direct role in selecting or vetting senior political officials. Should they?

This question is not merely hypothetical: Indonesia recently elected as its new president Joko Widodo, a reform-minded candidate who promised “zero-tolerance towards corruption” during his campaign (see a previous post discussing his election here). Last month, President-Elect Widodo took the unprecedented step of submitting his list of proposed nominees for cabinet positions to Indonesia’s powerful Corruption Eradication Commission (Komisi Pemberantasan Korupsi or “KPK”) for evaluation–and approval–before the list of nominees was finally made public. The KPK rejected eight of his submissions, with the result that President Widodo delayed the announcement of his cabinet compositions until he replaced these eight candidates with other nominees approved by KPK. Four days later, Widodo announced his cabinet composition, which presumably did not include the eight individuals to whom the KPK objected.

While the decision to give the KPK a de facto veto over cabinet appointments is in some ways an encouraging development–one that many Indonesians might appreciate as brave, progressive move, which enlarges the power of the popular KPK–it is troubling in certain respects, and should prompt more careful scrutiny and regulation. Continue reading →

Learning from Disaster: Corruption and Environmental Catastrophe

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One year ago, Typhoon Haiyan (known locally as Yolanda) struck the Philippines, claiming over 6,000 lives. In the aftermath, numerous reports emerged regarding the failure of the Philippine government to properly manage relief efforts and get foreign aid to victims. This past September, the Philippine Commission on Audit (COA) released its comprehensive–and damning–Report on the Audit of Typhoon Yolanda Relief Operations. According to the report, of the $15 million available in the Office of Civil Defense (OCD) quick response fund, and the $1 million in donations received by the National Disaster Risk Reduction Management Council (NDRRMC), not one cent was spent on the basic subsistence needs of typhoon victims, in clear violation of the statutory mandate of Republic Act 10352.

Elizabeth’s recent post highlighted some of the challenges involved in fighting corruption in a conflict zone. While a natural disaster like Typhoon Haiyan poses similar issues, the challenges–and the opportunities for effective response–differ in some important respects. On the one hand, in a natural disaster–as in a conflict situation–the chaos and breakdown of oversight, coupled with the dependence of victims on the resources, coordination, and capabilities of those in a position to provide relief creates a power imbalance that increases opportunities for corrupt actors. At the same time, although any individual natural disaster is unpredictable, the fact that such disasters will periodically occur is predictable (at least in certain disaster-prone areas), and this creates opportunities–which perhaps don’t exist to the same degree in the context of armed conflicts–to plan ahead: to take steps that can redress the potential power imbalance before the crisis occurs. Continue reading →

The UK Aid Impact Commission’s Review of DFID Anticorruption Programs Is Dreadful

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Last week, the United Kingdom’s Independent Commission for Aid Impact (ICAI) released its report on the UK Department for International Development (DFID)’s efforts to fight corruption in poor countries. The report, which got a fair amount of press attention (see here, here, here, and here), was harshly critical of DFID. But the report itself has already been criticized in return, by a wide range of anticorruption experts. Heather Marquette, the director of the Developmental Leadership Program at the University of Birmingham, described the ICAI report as “simplistic,” “a mess,” and a “wasted opportunity” that “fails to understand the nature of corruption.” Mick Moore, head of the International Centre for Tax and Development at the Institute for Development Studies, said that the report was “disingenuous[]” and “oversimplif[ied],” and that it “threatens to push British aid policy in the wrong direction.” Charles Kenny, a senior fellow at the Center for Global Development, called the report a “wasted opportunity” that “has failed to significantly add to our evidence base,” largely because “ICAI’s attitude to what counts as evidence is so inconsistent between what it asks of DFID and what it accepts for itself.”

Harsh words. Are they justified? After reading the ICAI report myself, I regret to say the answer is yes. Though there are some useful observations scattered throughout the ICAI report, taken as a whole the report is just dreadful. Despite a few helpful suggestions on relatively minor points, neither the report’s condemnatory tone nor its primary recommendations are backed up with adequate evidence or cogent reasoning. It is, in most respects, a cautionary example of how incompetent execution can undermine a worthwhile project. Continue reading →

A Dull, Boring, Humdrum, Unimaginative, Prosaic Proposal to Combat Corruption

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David took Alexander Lebedev and Vladislav Inozemtsev to task in a recent post for a scheme they proposed in an on-line issue of Foreign Affairs to combat corruption.  Ignoring the several international anticorruption conventions now in place and the slow but steady improvements these agreements have produced, the authors called for a brand new convention that would grant extraordinary powers to a supranational team of investigators, prosecutors, and judges to arrest, prosecute, and try those suspected of corruption no matter where they are.  The harebrained idea is so full of holes and so unrealistic that David labeled it “absurd,” a conclusion with which any serious analyst would surely agree.

In closing David urged the anticorruption community to stop advancing unrealistic, pie-in-the-sky proposals that waste readers’ time and scarce space in learned journals in favor of more realistic, if less catchy, ones.  In that spirit I offer the following dull, boring, humdrum, unimaginative, prosaic proposal — one not likely to capture the uninformed reader’s imagination or gain space in Foreign Affairs or another prestigious policy journal. On the other hand, my proposal will help crackdown on corruption, particularly corruption by powerful officials in developing states.  It is simple.  Developed nations should copy a program the British government began in 2006. Continue reading →

The StAR “Few and Far” Report, and (Conflicted) Reflections on Civil Forfeiture

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A couple weeks back, Rick’s post on the US DOJ Kleptocracy Initiative’s settlement in the Obiang case prompted an interesting exchange among several contributors to this blog (including me) about the use of civil forfeiture proceedings to seize assets–suspected of being the proceeds of corruption or other illicit activity–without a prior criminal conviction. I recently had the opportunity to read the Stolen Asset Recovery Initiative (StAR)’s excellent new report, Few and Far, about recent developments in the asset recover field, and this report prompted me to reflect further on this issue. The Few and Far report is very positive about civil forfeiture, and recommends substantially expanding its use. To quote the report:

Both developed and developing countries need to ensure that they have a broad range of mechanisms in place, such as the ability[y] … to confiscate [assets] in the absence of a conviction. (p. 3)

Confiscation in the absence of a conviction (NCB confiscation) continues to be an effective mechanism for freezing and confiscating assets…. [H]owever, most OECD members have yet to adopt laws permitting the confiscation of assets in the absence of a conviction. (p. 43)

I want to use the Few and Far report to raise again an issue that I noted in response to Rick’s post on the Obiang case: I’m deeply conflicted about the use of non-conviction-based (NCB) civil forfeiture proceedings, and I think that perhaps the anticorruption community should engage in a bit more reflection about this mechanism, and how to ensure it’s not abused. Continue reading →