Dispatches from the UNCAC Conference of States Parties, Part 2: International Enforcement of Anticorruption Agreements

Last month, the UN Convention Against Corruption (UNCAC) Conference of States Parties (COSP) was held in Vienna, Austria. In addition to the formal meetings of government representatives, the COSP also featured a number of panels, speeches, and other side events, at which leading experts discussed and debated a range of anticorruption topics. GAB is delighted that Northwestern Pritzker School of Law Professor Juliet Sorensen and her student Kobby Lartey, who attended the COSP, have offered to share highlights of some of the most interesting sessions in a series of guest posts. Today’s post is the second in that series.

The COSP panel on “Corruption and International Laws and Judgments” generated candid conversations about the role of international laws and judgments in the fight against corruption. Moderated by Bart Scheffers of the Open Society Foundation, the panel included one of us (Juliet Sorensen), along with Transparency International’s Gillian Dell; the Helsinki Committee’s Harry Hummel; and France Chain of the OECD. Continue reading →

Best Wishes for the New Year

As the year ends I want to thank the 86, 826 individuals from 209 jurisdictions who visited GAB this year.  A special thanks to those who offered comments or clarified my often-feeble efforts to alert readers to new developments or alternative approaches to fighting the common enemy.

See you in 2018.

Dispatches from the UNCAC Conference of States Parties, Part 1: Revisiting the Jakarta Principles of Anti-Corruption Agencies

Last month, the UN Convention Against Corruption (UNCAC) Conference of States Parties (COSP) was held in Vienna, Austria. In addition to the formal meetings of government representatives, the COSP also featured a number of panels, speeches, and other side events, at which leading experts discussed and debated a range of anticorruption topics. GAB is delighted that Northwestern Pritzker School of Law Professor Juliet Sorensen and her student Kobby Lartey, who attended the COSP, have offered to share highlights of some of the most interesting sessions in a series of guest posts. Today’s post is the first in that series.

Though specialized anticorruption agencies (ACAs) are dismissed by some as redundant or ineffective, last month’s COSP panel on “Revisiting the Jakarta Principles: Strengthening Anti-Corruption Agencies’ Independence and Effectiveness” made a strong case for ACA’s importance to the fight against corruption. (The Jakarta Principles are drawn from a 2012 statement drafted by anticorruption practitioners and experts from around the world; these broad, aspirational principles help anticorruption to protect themselves, and to offer inspiration for their work.) The panel, which included ACA commissioners from Indonesia, France, Romania, and Burkina Faso, as well as representatives from Transparency International, the UNODC, and UNDP, the panel highlighted the diverse struggles and successes of member states’ ACAs. Continue reading →

Preemptive FOIA Suits Chill Transparency Across the U.S.

Freedom of Information Acts (FOIAs) have been strong anticorruption tools in the United States for decades. Though the federal government and the 50 state governments each have their own version of FOIA, the basics are similar across the board: these statutes require the publication of certain government documents and allow any citizen to request the disclosure of unreleased records, and the government must provide that information, subject to certain important exemptions (for example, exceptions related to national security, personal privacy, and internal government deliberations). If the government agency does not answer a FOIA request within a certain period of time, set by the statute, the requester can file a FOIA lawsuit to force the agency to respond.

At the federal level, FOIA requests were one of the tools used to uncover former Health and Human Services Secretary Tom Price’s use of private charter planes for government travel, leading both to his resignation and to increased scrutiny on travel by other Cabinet members. The federal FOIA also played a key role during the Clinton Administration in uncovering corruption at the Department of Agriculture. Though the state-level FOIA laws get less attention, they have also played an important role in exposing corruption and related misconduct. In Virginia, for example, requests under the state FOIA helped build the corruption case against former Governor Bob McDonnell. Similarly, Michigan’s FOIA statute helped reveal information that led to charges against Detroit’s mayor for misconduct and obstruction of justice.

However, a new threat has recently emerged to the effectiveness of these laws, particularly at the state level. State and local governments have begun responding to state FOIA requests by suing the requester to ask the court for a so-called “declaratory judgment” that the agency is not obligated to release the information requested. These preemptive FOIA suits put one of the most powerful anticorruption tools in the United States at risk.

Continue reading →

Fake News: An Emerging Threat to Anticorruption Activists

The reputation of the Anti-Corruption Action Centre (ANTAC), a Ukrainian anticorruption NGO, was called into question in May 2017, when a video featuring a report from the American “News24” network appeared on YouTube; the video reported on investigations into the finances of Vitaliy Shabunin, the head of the ANTAC board. A few months later, in September 2017, Ukraine’s NewsOne featured a live broadcast of a sitting of the US Congressional Committee on Financial Issues in relation to alleged corruption in the National Bank of Ukraine (NBU). The hearing focused largely on the conduct of Valeriya Hontareva, who had championed reforms of the banking sector to prevent misuse of the system by business tycoons. The panelists suggested that Ms. Hontareva was herself corrupt and being investigated by the US Congress.

Reports that leading figures fighting for more integrity in Ukraine might themselves be corrupt are, of course, disturbing. What’s even more disturbing is the fact that both of these stories were completely fabricated. News24 does not exist. The news anchor who appeared in the purported News24 video was an American actor named Michael-John Wolfe, hired through the site Fiverr.com. As for the broadcast of the hearing before the “US Congressional Committee on Financial Issues”—there is no such committee. The so-called “hearing” was in fact a private event organized by lobbyists (including former congressman Connie Mack), held in a room in the basement of the US Capitol without the attendance of any current members of Congress. (Representative Ron Estes (R-KS) sponsored the room’s booking, apparently in violation House ethics guidelines.)

Although attempts to tarnish the reputations of activists and reformers are not new, the two incidents described above reveal that anti-anti-corruption forces are beginning to deploy the “fake news” tactics that garnered so much attention in recent elections, especially though not exclusively in the United States. And while in these incidents fake news was used as an offensive strategy, fake news has also been deployed defensively, for example by the wealthy and influential Gupta family in South Africa, to shake off allegations of corruption.

Although these efforts in Ukraine seem clumsy and easily exposed, it is likely that fake news will be an increasingly difficult challenge for anticorruption efforts in the years to come. The fake news phenomenon threatens to undermine anticorruption efforts in a variety of ways: Continue reading →

Anticorruption Bibliography–December 2017 Update

An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

Settling Prosecutions for Corruption: Developing Nations’ Issues

The OECD Antibribery Convention requires its 43 state parties to levy “effective, proportionate and dissuasive criminal penalties” on individuals or corporations who have bribed a foreign official. Since the convention took effect February 15, 1999, through June 1, 2014, when data was last compiled, the OECD Secretariat reports that more than two-thirds of all prosecutions have ended in a pre-trial settlement. Settlements are permitted under the convention, but they must still impose “effective, proportionate and dissuasive” sanctions on the settling defendant.

Developing nations, the World Bank/UNODC’s StAR Program, and civil society groups say many of these settlements have let corporate bribe payers off too easy.  They also say that, where a case involved bribery of a developing country official, settlement has made it harder for the developing state to collect the fine and other monies due from the bribe payer under its laws.

The OECD is considering issuing a guide on settlement terms.  To help its drafters ensure they appreciate developing nations’ concerns, Norway’s Agency for Development Cooperation asked I write a paper on settlements and developing nations. Last week I posted a draft that focused on settlement strategy.  Thanks to several very helpful comments and discussions, the final paper covers much different ground.  Among the points it makes:

  • Fears that OECD settlements will bar prosecution for the same acts in developing nations seem to be misplaced given current law, but concerns a settlement could compromise a developing state’s ability to recover — i) profits the defendant realized from corrupting its officials or ii) sufficient funds to compensate citizens injured by the corruption — are genuine.
  • Developing states with weak criminal justice systems face a dilemma when weighing whether to settle or try their own cases for corruption.  As last week’s post explained, a weak judicial system means a tough settlement is out of reach, for the system’s very weakness tells defendants if they go to trial they will prevail — or equivalently, be able to delay resolution for decades.  If a government loses a string of corruption cases, it risks encouraging more corruption as those tempted to commit acts of corruption see they are very likely to get off scot-free.

When, as in the case of transnational bribery, two sovereigns both have the legal right to try the perpetrators, tension is inevitable.  The paper offers several recommendations for if not eliminating the tension at least managing it. What in international law would be termed advancing principles of comity.  Click on Settlements of Criminal Corruption Cases — Developing States’ Issues to download the paper.  Comments earnestly solicited.  Many, many thanks to those who commented on last week’s version.

The Promise and Perils of Cleaning House: Lessons from Italy

In countries beset by endemic corruption, efforts to expose and root out corrupt networks, and to punish the participants, can and should be celebrated. There are, of course, always legitimate concerns about the role that political power struggles may play in anticorruption crackdowns (think China and Saudi Arabia), an issue we’ve discussed on this blog before (see here and here), and that I may turn to again at some point. But in today’s post, I want to put those issues to one side to focus on something different. Suppose that some combination of government investigation, citizen reports, and media scrutiny exposes a major corruption network. Suppose that even though people always suspected that corruption was all too common, the investigation reveals that the rot runs much deeper, and goes much higher, than most people had imagined. Suppose further that, as a result of these revelations, law enforcement agencies take aggressive action, putting many people in jail and causing many others to lose their government positions. Again putting aside for the moment concerns about political bias, this is all to the good. But, what happens “the morning after,” as it were?

The hope, of course, is that by “cleaning house,” the state will be able to turn over a new leaf; the “vicious cycle” of self-perpetuating corruption may be broken, and those corrupt officials disgraced and removed from power will be replaced by a new generation of cleaner (though of course not perfect) leaders. Unfortunately, while that’s one possible scenario, it’s not the only one. In his presentation at last September’s Populist Plutocrats conference, the Italian political scientist Giovanni Orsina used the Italian “Clean Hands” (Mani Pulite) investigation into widespread political corruption, and the subsequent rise of Silvio Berlusconi, to illustrate how, under the wrong set of circumstances, a well-intentioned and widely-celebrated corruption cleanup could contribute to the rise of a populist—and deeply corrupt—demagogue.

I don’t know enough to have a firm opinion on the validity of Professor Orsina’s analysis, and I gather that other analysts have a different view of the long-term impact of Clean Hands, but his arguments strike me as plausible and sufficiently important that they’re worth considering, not only as potential explanations for developments in Italian politics, but perhaps more importantly for their potential applicability (mutatis mutandis) to other cases. In particular, Professor Orsina identifies two related but distinct mechanisms through which an aggressive and seemingly-effective anticorruption crackdown can contribute to the rise of a populist demagogue like Berlusconi. Continue reading →

A Ukrainian Anticorruption Court Is an Essential Step Toward the Rule of Law

Since the Maidan movement that overthrew the last Ukrainian government, Ukrainian anticorruption activists have demanded, among other reforms, the creation of a specialized anticorruption court. Many of Ukraine’s Western backers likewise consider the creation of such a court to be an essential step in addressing the country’s systemic corruption problem, and in recent months, protests have broken out on the street in support of the court. In what appears to be a major victory for the domestic and international advocates of a special anticorruption court, President Poroshenko agreed in principle to create such a court this past October—although the details will need to be worked out.

Not everyone is convinced that the creation of a specialized anticorruption court is as important as its backers think. In a thoughtful post last month, Helen articulated the skeptical view, arguing that the specialized anticorruption court will likely not live up to expectations, and that domestic and international actors are placing too much emphasis on the creation of this particular institution. But Helen both underestimates the importance of a specialized anticorruption court in the Ukrainian context, and is overly pessimistic about its prospects for effectiveness. That said, she is right to highlight how things could go awry if the creation of the specialized anticorruption court is not done right.

Continue reading →

The U.S. Is Making a Mistake by Withdrawing from the EITI

Last month, the Trump Administration announced that the United States would be withdrawing from the Extractive Industries Transparency Initiative (EITI). The decision was not wholly unexpected, especially since the Department of the Interior announced last spring that it would no longer host regular talks among a group of U.S. stakeholders that included representatives from the industry as well as activists and government representatives — one of the requirements of membership in the EITI. Nonetheless, the U.S. decision to withdraw from the EITI is a significant setback to the fight against corruption and misgovernance in the resource sector.

To understand the likely impact of the U.S withdrawal from the EITI, it’s useful first to review what the EITI is—both its mechanics and its objectives. Continue reading →