Category Archives: Guest Commentary

Guest Post: The US and Afghanistan Need a New, Long-Term Anticorruption Strategy

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Ahmad Shah Katawazai, Defense Liaison at the Embassy of Afghanistan to the United States, contributes the following guest post:

President-elect Trump has declared that he will stop American taxpayers’ money from being squandered abroad. This position poses a threat to a continued US presence in Afghanistan, in light of Afghanistan’s endemic corruption. Retired Lt. Gen. Michael Flynn, President-Elect Trump’s pick to be National Security Advisor, has been arguing from a long time that abetting corrupt officials–“backing thugs”–would tarnish the U.S. military’s reputation. Thus Trump might threaten Afghan officials that the US will cut off foreign aid if the Afghan government fails to crack down on corruption.

The U.S.-led coalition mission in Afghanistan laid the foundations for systemic corruption right from the start of the war in 2001. The U.S. provided millions of dollars in cash to the so-called warlords, as well as opium and arms smugglers. These warlords and criminals needed to protect themselves, and they found that the best way to do so was to secure high-level governmental positions. It is these people who are mainly responsible for running the mafia-style corruption machine in Afghanistan.

Yet Western policymakers neglected this problem, largely because they were focusing more on security as their top priority. What these policymakers failed to grasp was the fact that corruption could turn into a serious security threat in Afghanistan. For too long the focus was solely on fighting the insurgents, but corruption undermined this fight by fueling grievances against the Afghan government and the West. Corruption, including the diversion of Afghan resources and donor aid for the private gain of the political elite, impoverished and alienated the common people. Public anger over massive graft and corruption in the country turned people against the government and the West, thus strengthening the ranks of Taliban. Moreover, according to the Special Inspector General for Afghanistan Reconstruction (SIGAR)‘s recent report, “U.S. money was flowing to the insurgency via corruption.” Corruption in Afghanistan cuts across all aspects of the society, with 90% of Afghans saying that corruption is a problem in their daily lives, and this endemic corruption threatens the legitimacy of Afghanistan’s government.

What has been achieved in the past 15 years in Afghanistan—at the cost of billions of dollars and the sacrifices of thousands of lives—today remains at jeopardy. The country is in a fragile and vulnerable position. Yet it would be shortsighted for the US to simply disengage, or threaten to cut off aid if the Afghan government fails to crack down sufficiently. What is needed both from the Afghan government and the new U.S. administration is a unified, long-term, practical, results-oriented strategy that could produce solid outcomes. It would be wise for the Trump administration to come up with such a strategy. Afghanistan should remain a priority because of its geo-strategic location and an important U.S. ally in the region. Given the existing circumstances and the need to bolster Afghanistan’s security and economy, and to prevent the country from becoming a safe haven for terrorists and insurgents, a long-term commitment and a coherent strategy to get corruption under control would be in the interests of both the U.S. and Afghan governments.

Guest Post: Corporate or Individual Liability? Converging Approaches to Fighting Corruption

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GAB is delighted to welcome back Gönenç Gürkaynak (Managing Partner at ELIG Attorneys-at-Law in Istanbul and 2015 Co-Chair of the B20 Anti-Corruption Task Force), who, along with his colleagues Ç. Olgu Kama (ELIG partner and B20 Anti-Corruption Task Force Deputy Co-Chair) and Burcu Ergün (ELIG associate), contributes the following guest post:

Combating international corruption has come a long way in the last decade. More and more jurisdictions are adapting and updating their legal systems in an effort to eradicate impunity for corruption crimes. Yet an important question persists: Who should be held primarily liable for corruption crimes, the individual or the company? The US and European countries have traditionally provided diverging answers to this question, but there now seems to be some evidence of an emerging convergence, though a consensus is yet to be reached.

In the United States—the pioneering legal system in terms of fighting international corruption—although individuals can be charged with violations of the Foreign Corrupt Practices Act (FCPA), it is the companies that are primarily held liable for FCPA violations. The US embraces a broad notion of corporate criminal liability, based on the principle of respondeat superior (the employer is responsible for the acts or omissions of its employees) and the US Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have employed this theory as the basis for FCPA settlements with scores of corporations, raking in hundreds of millions of dollars in fines. However, there have been relatively few FCPA cases brought against individuals. This may be due in part to the fact that it is often difficult to attribute a corrupt act to any one specific individual, though it may also be due to the DOJ’s and the SEC’s traditional focus on going after the “deep pockets” of the corporations that come under their scrutiny.

In contrast to the US, the focus of criminal law in continental European systems has typically been on the culpability of individuals; thus, the introduction of the concept of “corporate criminal liability” is a relatively new development. Traditionally, the continental European systems have taken the view that criminal punishment can only be imposed on grounds of personal culpability, and that organizations cannot be held liable under criminal law (societas delinquere non potest). To that end, some European jurisdictions have preferred imposing administrative liability on corporations for actions that are considered to be administrative (rather than criminal) offenses.

In terms of deterring corrupt acts, a broad notion of corporate criminal liability goes a long way. The willingness of US authorities to impose significant fines on corporations provides powerful incentives for corporations to self-police. Furthermore, the threat of criminal FCPA sanctions—and the associated “moral sanctioning” of criminal liability—may have a more powerful effect on corporations than would similar fines imposed as administrative sanctions. On the other hand, the threat of corporate criminal liability is likely not sufficient, on its own, to foster a compliance culture within an organization. In a legal environment in which individuals face a credible threat of prosecution for their personal roles in organizational corruption, corporations could maintain a stronger culture of compliance as the employees themselves would be legally responsible for their misconduct and therefore less likely to engage in (or turn a blind eye to) corrupt practices.

Even though significant differences remain among jurisdictions, it is an encouraging development that there now seems to be gradually converging views regarding corporate criminal liability among these different legal systems. Continue reading →

Guest Post: Aid Agencies Need to Improve Their Anticorruption Strategies and Implementation in Fragile States

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GAB is pleased to welcome back Jesper Johnson, who contributes the following guest post:

Last year, Nils Taxell, Thor Olav Iversen and I contributed a guest post about the EU’s anticorruption strategy and its implementation (calling development aid a blind spot for EU anticorruption efforts), based on a report which was presented twice in the European Parliament. This material was part of a wider comparative study of the anticorruption strategies of the World Bank, European Commission, and UNDP that has just been published as a book by Edward Elgar. The book is the first major comparative study of work to help governments in fragile states counter corruption by the three multilateral aid agencies. The focus is on fragile states, where aid agencies face the greatest challenges in terms of both strategy and implementation. Although many recent reports and agreements, including the OECD’s New Deal for Engagement in Fragile States and the World Bank’s 2011 World Development Report, have emphasized that agencies need to change the way they work in fragile states—in particular, the traditional policy frameworks cannot be uncritically copied from a non-fragile contexts—this message has not yet trickled down to the way these three multilateral aid agencies do anticorruption. Anticorruption and state-building policies are often disconnected or incoherent, and challenges rooted in the organization of the agencies prevent strategies from translating into results. More specifically, all three aid agencies shared a number of characteristics that inhibited their ability to address corruption in fragile states more effectively: Continue reading →

Guest Post: The Metaphysics of “Corruption” (or, The Fundamental Challenge to Comparative Corruption Measurement)

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GAB is pleased to welcome back Jacob Eisler, Lecturer at Cambridge University, who contributes the following guest post:

A couple months back, Matthew Stephenson and Michael Johnston engaged in a lively debate on the question of if aggregate-level data of corruption is useful, focusing on the appropriate level of methodological skepticism that should be directed towards large-scale efforts to quantify corruption (see here, here, here, and here). While this debate touched on a number of fascinating questions regarding how to best treat data regarding corruption, it has drifted away from why Michael had a concern with overly aggressive quantification in the first place: Actually addressing corruption requires a “standard of goodness,” and the difficulty in coming up with such a standard explains why the social sciences have faced a “longstanding inability to come to a working consensus over how to define corruption.” In other words, when we talk about corruption, we are inevitably talking about something bad that suggests the vitiation or distortion of something good. It is difficult to conceptualize corruption except as a distortion of a non-objectionable political process—that is, political practice undertaken with integrity. This need not mean that there must be some shared first-order property of good governance; but it does suggest that there is a shared property to distorted or corrupted governance that must derive from some shared property of all politics.

If this idea of a “shared feature” is taken seriously, it would suggest those who argue for the value of comparative corruption metrics are making a very strong claim: that if you are comparing corruption within a country, or across countries, all the relevant polities and types of practice must have some shared feature, deviation from which counts as corruption. This shared feature in turn would be an aspect of governance. It could be any number of constants in human society – a constant feature of morality in governance, or tendencies of human anthropology. But in any case, this is a very distinctive and powerful claim, and one that requires strong assumptions or assertions regarding the nature of governance. To weave this back to the original dispute, our willingness to rely on quantitative metrics should depend on our level of commitment to our faith in this constant feature of politics that makes corruption a transferable, or, more aggressively put, “universal” thing. Our use of these homogenizing empirical metrics implies that we are committed to the robustness of the constant feature. Yet it doesn’t seem like this conceptual work has been done. Continue reading →

Guest Post: When and How Will We Learn How To Curb Corruption?

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GAB is pleased to welcome Finn Heinrich, Research Director at Transparency International, who contributes the following guest post:

Listening to conversations about corruption among global policy-makers, corruption researchers, and anticorruption activists alike, I can’t help but notice that the focus of anticorruption research and policy is changing. The 1990s focused mainly on demonstrating that corruption exists and finding ways to measure it (largely through perception-based indicators), and the early 2000s were about assessing corruption risks in specific countries, sectors, or communities, and assessing the performance of anticorruption institutions. More recently, researchers (and their funders and clients) are shifting from the “Where is corruption?” question toward the “How can we fight corruption?” question. They ask: Do we know what works, when, where, and under which circumstances in curbing a specific type of corrupt behavior?

Answering such questions is extremely challenging. Corruption’s clandestine nature makes it difficult to measure, data is often of low quality or simply not available for time-series or cross-sectional analysis beyond aggregate country-level indicators. Furthermore, anticorruption interventions often lack an underlying theory of change which would be needed to design robust research evaluations to find out whether they worked and if so, how (and if not, why not). And we lack realistic but parsimonious causal models which can take account of contextual factors, which are so important to understand and tackle corruption, as corruption is an integral part of broader social and political power structures and relationships which differ across contexts. Similarly, there is a lack of exchange between micro-level approaches focusing on specific, usually local anticorruption interventions, on the one hand, and the macro-level literature on anti-corruption strategies and theories, on the other.

While we at Transparency International certainly do not have any ready-made solutions for these extremely tricky methodological and conceptual issues, we are committed to joining others in making headway on them and have therefore put the “what works” question at the heart of our organizational learning agenda by engaging in reviews of the existing evidence as well as ramping up impact reviews of some of our own key interventions. For example, we have just released a first rapid evidence review on how to curb political corruption, written by David Jackson and Daniel Salgado Moreno, which showcases some fascinating evidence from the vibrant field of political anticorruption research. We are also working with colleagues from Global Integrity on a more thorough evidence review on corruption grievance as a motivator for anti-corruption engagement and are planning further evidence reviews and impact evaluations.

As we start to get our feet wet and figure out how to best go about generating and making sense of the existing evidence on what works in anti-corruption, we are keen to engage with the broader anticorruption research community. Maybe there are others out there who have some ideas about how to go about learning about what works in fighting corruption? If so, please use the comment box on this blog or get in touch directly at acevidence@transparency.org.

Guest Post: The US Needs To Show More Respect for Foreign Prosecutions

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GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

The principle that the state may not criminally prosecute the same defendant twice for the same conduct—known in most of the world as ne bis in idem (“not twice for the same thing”), and known in the United States as the prohibition on “double jeopardy”—is well-settled and uncontroversial, at least in Western democracies. Much more controversial is whether that principle protects a defendant prosecuted by one country from prosecution by a different country for the same (or closely related) conduct. This question is of particular importance in the context of transnational bribery, where the same conduct might violate the criminal laws of multiple governments. As I discussed in my last post, in Europe, a mix of domestic legislation, international treaties, and court decisions have established an international version of the ne bis in idem principle, providing companies with a reasonable assurance that if they are prosecuted in one European country, they are shielded from further prosecution in another. In contrast, in the United States the prohibition on double jeopardy has been consistently interpreted to prohibit only multiple prosecutions by the same sovereign. US laws thus offer no protection against re-prosecution in the United States after a prosecution abroad.

The power of US prosecutors to go after companies that have already been prosecuted in other countries is enhanced by other powers that European prosecutors can only dream about. As noted in an earlier post, a US prosecutor can pursue a corporation when anyone within that corporation can be shown to have committed a crime, giving the prosecutor considerable leverage. US prosecutors also have finely tuned procedural mechanisms, such as deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), that are only tentatively being explored in other countries, such as the United Kingdom and France. The DOJ regularly asserts aggressive notions of its territorial powers, claiming, for example, that the use of dollars as the currency of an illegal transaction may subject the participants to US prosecution. US prosecutors have essentially unreviewable discretion their investigative decisions, because unlike many countries in Europe, criminal investigations (and, crucially, the decision to charge) are not supervised or reviewed by judges, as the DC Circuit has recently held.

Taken together, these circumstances risk causing two problems: Continue reading →

Guest Post: Behavioral Economics, Punishment, and Faith in the Fight Against Corruption

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The following guest post, by Roberto de Michele, Principal Specialist in the Institutional Capacity of the State Division at the Inter-American Development Bank (IDB), is a translated and slightly modified version of a post that Mr. de Michele originally published in Spanish on the IDB’s governance blog on August 29, 2016:

Last August, Hugo Alconada Mon, one of Argentina’s most prestigious investigative journalists, published an article (in Spanish) describing how road construction firms in Argentina created a cartel to fix public work contracts. Members of the cartel would meet in the board room of the sector chamber to conduct their business. The room has a statue of Our Lady of Luján, patroness of Argentina. Before commencing negotiations to fix contracts, assign “winners,” and distribute earnings, members of the cartel would turn around the image of Our Lady of Luján to face the wall, with her back to those gathered there. It was, as one of the sources candidly put it, “so that she doesn’t see what we were about to do.” This remark got me thinking about two possible explanations on why we break the law, cheat, and lie both to the government and to others. Continue reading →

Guest Post: Does International Law Require an International Double Jeopardy Bar?

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GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Most countries prohibit multiple prosecutions for the same acts or offenses. This is known in the United States as the prohibition against “double jeopardy”; in Europe and elsewhere the principle is known as ne bis in idem. But what happens if a person or company is pursued in more than one country? This question is particularly relevant to the fight against foreign bribery, where the same act will often offend the criminal laws of multiple countries. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted in 1997, clearly anticipated the possibility of multi-state prosecutions, but provided in Article 4.3 only that the relevant authorities should “consult with a view to determining the most appropriate jurisdiction for prosecution,” a provision that has been consistently interpreted as precatory, not providing an individual right against double prosecution.

The law in the United States provides no protection against duplicate prosecution by a different sovereign. The situation is more complex in Europe. In some countries, such as France, domestic legislation limits a prosecutor’s power to pursue a person or entity already the object of a prosecution in another country, but only if the exercise of French jurisdiction is “extraterritorial” (that is, where no constitutive act of the alleged crime took place on French territory, but the prosecution based on some other factor, such as the French nationality of the accused or the victim).  Within Europe, a series of overlapping treaties—Protocol Number 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), adopted in 1984 by the Council of Europe and signed by most but not all of its members; Article 54 of the Convention to Implement the Schengen Agreement (CISA), adopted in 1990; and Article 50 of the Charter of Fundamental Rights of the European Union (CFR) adopted in 2009—all contain ne bis in idem provisions, though they are not identical. (The CISA provision, for example, protects against re-prosecution based on the same “acts,” while the CFR and CPHRFF protect against multiple prosecutions for the same “offense.”)  The CISA provision has been expansively interpreted by the European Court of Justice, which has noted that CISA mandates a “mutual trust” in the criminal justice systems of other signatory countries, and respect for their decisions “even when the outcome would be different if [the second country’s] own national law were applied.”

Lurking behind these and other developments in Europe is the possibility that protection against multiple prosecutions may one day be viewed as right, grounded in international treaty obligations, that is cognizable under domestic constitutions. No court has yet so ruled, but there are sufficient intimations of such a possibility in some French decisions, for example, that the issue is frequently raised there. Continue reading →

Guest Post: Please, Criticize Me! (Why Anticorruption Practitioners Should Scrutinize and Challenge Research Methodology)

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GAB is pleased to welcome back Roger Henke, Chairman of the Board of the Southeast Asia Development Program (SADP), who contributes the following guest post:

In a previous post, I described a survey used to estimate the incidence of fraud and associated problems within the Cambodian NGO sector. The response to the results of that survey have so far been somewhat disheartening—not so much because the research has had little influence on action (the fate of most such research), but rather because those who have been told about the study’s results have all taken the results for granted, questioning neither their meaningfulness nor how they were generated. Such at-face-value uptake is, paradoxically, a huge risk to the longer-term public acceptance of the evidence produced by social-scientific research.  I am relieved that methodological considerations (issues of publication bias, replicability, p-hacking, and others) are finally getting some traction within the social science community, but it is evident that the decades-long neglect of these problems dovetails with a public opinion climate that doubts and disparages social science expertise.

Lack of attention to the methodological underpinnings of “interesting” conclusions is hardly a remarkable fate for corruption research results, nor is it specific to corruption research.  But the anticorruption community has a lot to lose by distrust in research, and thus a lot to win by ensuring that the findings it uses to build its cases upon pass basic quality checks. For the remainder of this post I’ll examine some basic questions that the Cambodia NGO corruption survey’s results should have triggered before being accepted as credible and meaningful: Continue reading →

Guest Post: What the McDonnell Opinion Portends for U.S. Anticorruption Law, and U.S. Politics

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Jacob Eisler, Lecturer at Cambridge University, contributes the following guest post:

As Matthew observed in his blog post earlier this summer on the Supreme Court’s unanimous decision to vacate the conviction of former Virginia Governor Bob McDonnell, there are two different ways one might interpret this decision. One could read McDonnell narrowly as a case that focuses on overly expansive jury instructions on the meaning of “official act” in the statutory definition of bribery. Alternatively, a more expansive reading would focus on language in the opinion that suggests the Court has a lenient attitude towards self-serving behavior by (high-ranking) public officials. As I argue at length in a forthcoming article, the broader—and for anticorruption activists more troubling—reading of the case is the right one, and the decision therefore has potentially extensive implications for American politics. Continue reading →