Fighting Grand Corruption: A Criticism of the 'Crime Against Humanity' Approach & A Feasible Solution

Abstract

It has been suggested that the most serious cases of grand corruption can be prosecuted before the International Criminal Court (ICC) as a Crime Against Humanity. Although this suggestion constitutes a laudable effort to fight impunity associated with financial crimes and kleptocracy, it contravenes the principle of legality, as interpreted by international tribunals, and cannot be supported by the current ICC Statute. The ideal solution would be to amend the ICC Statute or create a new treaty that would allow for such prosecutions of grand corruption. Yet due to the inherent difficulties of such international negotiations, a solution should be proposed within the current international anti-corruption framework. Indeed, a three-prong solution is offered: a coordinated use 1) of the anti-money laundering and forfeiture framework, 2) of mechanisms that ascertain independent and impartial domestic prosecutions and 3) of the association of corruption with controls on development aid and foreign private investments, would result into an end to impunity and the recovery of misappropriated funds. Moreover, even if two of these prongs were actually implemented, the outcome would be acceptable in terms of mitigating the incurring damages.