Fujimori on Trial :: Fujimori procesado

Accountability in Action :: Rindiendo cuentas

Fujimori on Trial :: Fujimori procesado random header image

Prosecution and Inter-State Cooperation of Corruption Committed in a Single State: Legal Basis, Immunities and Asset Recover: The Fujimori Case

Ilias Bantekas

Professor of International Law, Brunel University

In a political environment where international funding for criminal prosecution is premised on the number of reported deaths, the incident’s proximity to Europe and North America, as well as the relevance of the locus delicti commissi to the geo-strategic interests of the funding States, it is not hard to figure out why there is so little, if any, interest in the funding of domestic criminal prosecutions, or the setting up of international criminal tribunals for cases involving corruption. While it is indeed plausible to assume that an international crime of corruption does in fact exist, given that the matter is governed by at least three regional and two global conventions, these conditions make it hard to identify a common core. This is so, despite the criminalization of corruption in the domestic laws of all States. These conventions bind the parties thereto, but do not generally provide for an erga omnes partes obligation or entitlement, such that would grant other contracting States the right to challenge those parties that intentionally fail to prosecute or provide cooperation.

This author has suggested elsewhere that certain crimes of corruption can, and in fact do, entail consequences that are clearly tantamount to crimes against humanity in relation to their long, or short-term, effects on the civilian population. Academic authors will also justly entertain the proposition that given the common elements of corruption in the aforementioned conventions and the domestic laws of the various States, that the existence of a solid customary rule is beyond doubt, at least as concerns the subjective and objective elements of the definition of the offence. An additional element in said undoubted customary definition is the duty to prosecute those crimes of corruption taking place on the territory of the forum State. The customary definition would not encompass the duty to prosecute instances of corruption committed abroad, and to assume a duty to cooperate with the State in which the corruption took place requires an investigation of the relevant bilateral extradition treaty. The case would certainly be different were the effects of the corruption in question to be equated to a crime against humanity or an equivalent, because the customary nature of the offence would no longer by judged on the basis of the crime of corruption (whose customary ambit is narrow), but in accordance with more serious crimes to which pertains a broader jurisdictional ambit. 

Besides corruption as a crime against humanity, the offence itself, when committed by State officials against a country’s public wealth (natural resources and tax revenues, among others) may also constitute at least two other violations of international law; plunder and an offence against the right to self-determination. Let us assess whether these are international crimes for the purposes of the Fujimori case. The international legal context of plunder is limited to armed conflicts, as well as that of crimes against humanity. On the other hand, whereas the freedom to dispose of and benefit from the wealth of a nation belongs to the internal dimension of that nation’s self-determination. Unfortunately, the illicit appropriation of said resources by the nation’s governing regime does not constitute an international offence against self-determination, since there does not exist any international codification to this effect. The type of corruption that is alleged as having taken place in Peru under the Fujimori regime involves not only the illicit diversion of funds to foreign bank accounts, but also their appropriation without parliamentary approval in order to finance a host of illegal operations, particularly buying-out elements of the press with the purpose of favourably portraying the government, the setting up of an elaborate covert operation to intercept private communications and others. In this regard, significant payments were made to third parties, whether for the purposes of facilitation of said illicit activities, or as a means of theft from the country’s treasury. Moreover, given that the concealment of such activities requires robust tactics so that the independent press be shut out and access to information denied, human rights abuses committed by those persons who are privy to such illicit operations constitutes a significant component of any institutionalised corruption. This latter component is prevalent in the ongoing Fujimori investigations. In this case, human rights violations have taken place as a direct result of the corrupt activities and are not indirectly linked to them.

Any arguments that ex-President Fujimori and his closest associates cannot be prosecuted in international law does not stand to legal reason. For one thing, even if the offence of corruption within a single State by nationals of that very State does not constitute a universal international crime by virtue of treaty law, it does constitute an international crime by virtue of general principles of law, because it is an offence in all States of the world. Secondly, each State may prosecute natural persons for prescribed offences taking place on their territory, as long as the offence had already been promulgated by the time the act was committed, which is indeed satisfied with respect to Peru’s legislation. In the case of State officials, the situation is slightly more restrictive, but cannot absolve those charged for corruption crimes in Peru. Immunity from prosecution can only be conferred under international law to incumbent Heads of State, or Heads of Government, as well as incumbent Foreign Ministers. Former State officials, even Heads of State, do not enjoy any type of immunity when out of office, as was categorically affirmed by the House of Lords in the Pinochet case, as well as by the International Court of Justice (ICJ) in the Belgian Arrest Warrant case. This international law rule on the applicability of immunities to foreign officials applies vis-à-vis third States and as far as the official’s home State is concerned, this may remove the official’s immunity at any time in accordance with its constitutional dictates. Thus, there exists no legal impediment that is related to the law of immunity that prevents members of the Fujimori regime to be tried before any national criminal tribunal around the world. It is also well established that any amnesties enacted by the alleged offender while he or she was in office are not binding to the international community of States and even if the national courts of that State feel compelled to conform to these amnesty statutes,[1] their judgments will not have legal effect abroad.

A final issue relates to the legality of asset seizures, confiscations of illicit proceeds and the legal premise of inter-State cooperation. The Peruvian government has thus far been successful in retrieving significant sums of money that were found to be in Swiss bank accounts under the names of some of the accused persons. To those parties subject to the UN Convention against Corruption, Articles 44-50 establish a clear obligation to co-operate with respect to extradition, mutual legal assistance and other forms of police and investigative collaborations. The most significant and innovative element of this Convention, however, is its asset recovery provisions, contained in chapter V. Although such cooperation may have to subsequently be put into motion through bilateral or other multilateral channels, there is no reason why existing bilateral mutual legal assistance treaties cannot serve as the basis of said asset recovery and there is equally no compelling reason why asset recovery cannot be expedited through unofficial means that do not require parliamentary notification, such as memoranda of understanding (MoU). Moreover, although we have stated that there does not exist an international offence against the right to (internal) self-determination, the assets of a State, nonetheless, belong to the people of that State, represented through the international legal person of that State. Thus, there exists a concrete obligation to return these assets where they have been illicitly appropriated, irrespective of whether they are lawfully held in trust or in a bank account in the forum State, in accordance with its laws. Thus, the means and logistics of any asset recovery cannot impede or negate a nation’s rightful ownership of its plundered resources. The implication of this observation is that where the forum State delays the recovery of assets on account of its domestic laws, it is liable as a matter of State responsibility for the safe maintenance of the assets, as well as for the payment of interest to the requesting State.




 

[1] Obviously, an amnesty granted to a guilty party with the purpose of securing his cooperation and testimony is permissible. See Art 37(3) of the UN Convention against Corruption.