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.