BEYOND DOMESTIC AND INTERNATIONAL BOUNDARIES: HOW ICC CAN CONNECT…
- The term “corruption” does not lend itself to one easy and precise definition. The Law Dictionary (Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed) defines it as “Illegality; a vicious and fraudulent intention to evade the prohibitions of the law. The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others”.
- It was also defined by professor (emeritus) Dr. Petrus van Duyne as “an improbity or decay in the decision-making process in which a decision-maker consents to deviate or demands deviation from the criterion which should rule his or her decision-making, in exchange for a reward or for the promise or expectation of a reward, while these motives influencing his or her decision-making cannot be part of the justification of the decision”.
2.0 THE INTERNATIONAL CRIMINAL COURT
2.01 In her book “Responsibility for Crimes Under International Law” Elizabeth Oji was of the opinion that The international community as a whole and not merely one or other of its members, now considers that there are acts which violate principles formally embodied in the Charter of the U.N and, even outside the scope of the Charter, principles which are now so deeply rooted in the conscience of mankind that they become particularly essential rules of general International Law. There are enough manifestations of the views of states to warrant the conclusion that in the general opinion, some of these acts genuinely constitute “international crimes”, that is to say, international wrongs, which are more serious than others and which as such, should entail more severe legal consequences”. It was the desire to bring about these severe legal consequences for international crimes that led to the creation of the international criminal court.
2.02 The International Criminal Court (ICC) was established by the Rome Statute of the International Criminal Court (the Rome Statute).
2.03 Article 5 of the Rome Statute established four core international crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.
2.04 Article 6 defines genocide to include any act committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious groups by “causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.
2.05 Article 7 defines crimes against humanity as acts committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. The said acts includes torture which was defined as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; excerpt that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”.
2.06 Under Article 8, the meaning given to war crimes includes “willfully causing great suffering or serious injury to body or health”.
2.07 A careful reading of the provisions of the above three Articles of the Rome Statutes revels that they consistently criminalize acts perpetrated by the accused persons, which causes serious bodily or mental harm, physical destruction, the intentional infliction of severe pain or suffering, great suffering, and or serious injury to body or health to their victims.
2.07 The poser before us now is: does corruption fall under those acts which cause “serious bodily or mental harm, physical destruction, the intentional infliction of severe pain or suffering, great suffering, and or serious injury to body or health to their victims”?
2.08 To aid us towards addressing the poser, we shall use illicit asserts transfers as our case study. Is there corruption in illicit asserts transfers? There is no gainsaying the fact that illicit financial transfers pose major challenges to developing countries. They deprive the country concerned of urgently needed resources for private and public investment, thereby hampering infrastructure building and economic growth. It also weakens state institutions and therefore encourages the growth of corruption.
2.09 Evidence abound that an unchecked illicit asserts transfers inexorably leads to “serious bodily or mental harm, physical destruction, the intentional infliction of severe pain or suffering, great suffering, and or serious injury to body or health on the generality of the people in the State where they take place.
3.0 One of the major problems faced by developing countries vis-à-vis the crime of illicit transfer of funds is that it is oftentimes perpetrated by Heads of States and government officials.
3.01 Certain International Law principles came into being in order to hold State officials responsible for the crimes they committed both individually and collectively, albeit on behalf of the State. International Crimes have over the years developed around the Nuremberg Principles. These principles were a set of guidelines for determining what constitutes a war crime. It was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members after World War II.
3.02 Prior to the Nuremberg trial, the legal defence of “Superior Orders” was tenable. During and after the trials, however, it is no longer an acceptable excuse to say ‘I was just following my superior’s orders”.
3.03 By the provisions of the Nuremberg Principle IV , “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law provided a moral choice was in fact possible to him”.
3.04 This became the legal bases for international criminal responsibility for offences as codified under Articles 6, 7 and 8 of the Rome Status. No longer can the individual escape international criminal liability merely because he was following the orders of his government or his superiors. The principle insists that he is liable, as long as there is a moral choice which is in fact possible to him.
3.05 The Nazi leaders were held liable for aggression, war crimes, genocide and torture even when their actions were not crimes under international law at the time. The indictments were created ex post facto and were not based on any nation’s laws, thus violating basic principles of legality: nullum crimen sine lege, nulla poena sine lege (no crime without law, no punishment without law). The insistence on their criminal culpability in Nuremberg however stems primarily from the fact that human civilization cannot survive any repeat of the scale of violence unleashed by the Nazi, and therefore cannot afford not to punish them severely.
3.06 Going by the above line of reasoning, it thus becomes clear that there are very compelling grounds for insisting that corruption should be made an international crime. The potent destructive force behind unchecked corrupt practices like illicit transfer of funds, especially in developing countries ought to propel the International Court of Justice towards the expansion of its jurisdiction through a broader definition and interpretation of Articles 6, 7 and 8 of the Rome Statutes to include financial corruption charges which should be elevated to the status of a norm from which no derogation is permitted.
3.07 This brings us to the principle of Jus cogens. It is a peremptory international customary law; a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. These are norms which the world community has, over the years, accepted as such. Why should corruption not be among the existing jus cogens?
3.08 In 2014, member states of the African Union adopted a protocol in Malabo, Equatorial Guinea, known as the Malabo Protocol. The Protocol aims at granting criminal jurisdiction to the existing African Court of Human Rights. There are ongoing plans to merge the court with the African Court of Justice to create an African Court of Justice and Human Rights (ACJHR). The ACJHR’s jurisdiction will extend to the adjudication of interstate disputes and human rights violations, as well as the prosecution of serious crimes committed by individuals and corporations on the African continent. This would present a rare opportunity for the court to include corruption in the list of offences prohibited by the principle of jus cogens.
3.09 How does the ICC come into all of this? The move towards the establishment of an African International Court has been on for decades now. The feelings in recent times, among State parties to the AU, that the rest of the international community has used the ICC against Africans in a lopsided manner have given a sense of urgency to the idea of an African International Court. This court has been conceived as a court that can prosecute crimes that are particularly prevalent in Africa, but are of apparently little prosecutorial interest to much of the rest of the world. The ICC should take steps to assure African State parties of its impartiality and willingness to protect the interest of all the state parties. Corruption is a serious crime which is widely prevalent among African countries with devastating consequences. The proposed steps towards reconciliation should include the final inclusion of corruption as one of the crimes prohibited by international law.