Corruption as a Crime Against Humanity – Other Inhumane Acts
August 15, 2011 by Martin Kenney
A number of scholarly articles posit the thesis that grand scale corruption is a crime that could be prosecuted under the Rome Statute of the International Criminal Court (Rome Statute). Although corruption does not merit specific mention in the Rome Statute, in theory it could be classified as a crime against humanity given the potential such wrongdoing has to cause grievous suffering to the most vulnerable in any given population.
Given the inherent difficulty in securing any amendment to the Rome Statute, let alone one involving agreement on the inclusion of corruption as a crime, recourse to the current provisions of the Statute provides the only realistic option of prosecuting corruption internationally, although such an approach will not be without its critics and the same scholarly articles that advocate this approach also point to the many potential pitfalls of same.
The Rome Statute provides for international prosecution for the most serious crimes of concern to the international community as a whole, including genocide, war crimes, and crimes against humanity. Crimes against humanity in contrast to genocide for example do not require proof of a specific intent to destroy a qualifying group, nor do they, in contrast to war crimes, require a nexus to an armed conflict. Article 7 of the Rome Statute defines the elements of crimes against humanity. Under Article 7(1) of the ICC Statute, crimes against humanity include enslavement, sexual slavery, enforced prostitution, murder, and other inhumane acts that are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(2)(a) defines an “[a]ttack directed against any civilian population” as “a course of conduct involving the multiple commission of [the acts listed in Article 7(1)] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” There are good grounds for arguing that grand scale corruption comes within the category of other inhumane acts.
The ICTY Appeals Chamber defines "inhumane act" as "an act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity" and interprets "act" to mean "act or omission" in this context, see Prosecutor v. Stakic, Case No. IT-97-24-A, Appeal Judgment, P 362 (2006).
In the context of grand scale corruption where government coffers are looted leaving scant resources for public services, it is surely arguable that those who steal do so in the knowledge that their actions will directly affect those whom they govern. The ICTY Appeals Chamber has held that a consequence is "intended" when the accused deliberately undertakes conduct while knowing of a risk or a substantial probability that the conduct will cause the consequence, see Prosecutor v. Tadic, Case No. ICTR-95-1-A, Appeals Judgment, PP 657, 659. It is immaterial in this context that the thief does not intend to target or harm any particular person - the corrupt official's lack of active antipathy toward the victims is unimportant, for crimes against humanity can be committed for purely self-interested reasons.