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Legal Remedies for Grand Corruption

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Legal Remedies for Grand Corruption LEGAL REMEDIES FOR GRAND CORRUPTION THE ROLE OF CIVIL SOCIETY ACKNOWLEDGMENTS This volume was compiled by Ken Hurwitz, senior legal officer for the Anticorruption Program of the Open Society Justice Initiative, and Richard E. Messick, a lawyer and consultant on anticorruption issues. It brings together in final form a series of papers that were first presented at a day of discussions on the worldwide legal fight against high-level corruption organized by the Open Society Justice Initiative and Oxford University’s Institute for Ethics, Law and Armed Conflict in June 2014. Several of the individual papers have been previously published on the Global Anticorrption Blog (https://globalanticorruptionblog.com/), which is edited by Richard E. Messick and Matthew Stephenson, professor of law at Harvard Law School. Our sincerest thanks to the authors for their inimitable contributions. Copyright © 2019 Open Society Foundations. This publication is available as a pdf on the Open Society Foundations website under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. ISBN: 9781940983875 Published by: Open Society Foundations 224 West 57th Street New York, New York 10019 USA www.OpenSocietyFoundations.org For more information contact: Ken Hurwitz Open Society Justice Initiative [email protected] Cover, design, and layout by Ahlgrim Design Group Printing by GHP Media, Inc. LEGAL REMEDIES FOR GRAND CORRUPTION: THE ROLE OF CIVIL SOCIETY 1 CONTENTS 2 Foreword: Seeking Legal Remedies for Grand Corruption Ken Hurwitz 8 Introduction: Past Steps and Future Directions Richard E. Messick 17 France’s Biens Mal Acquis Affair: Lessons from a 10-Year Legal Struggle Maud Perdriel-Vaissière 28 Laundering the Proceeds of Corruption in Equatorial Guinea: The Case before the Spanish Courts Nuria García Sanz 38 Standing Doctrine and Anticorruption Litigation: A Survey Matthew C. Stephenson 53 International Immunities and the Fight against Grand Corruption Maud Perdriel-Vaissière 63 Anticorruption Litigation in the Supreme Court of India Arghya Sengupta 72 Lessons from Qui Tam Litigation in the United States David Kwok 83 Private Prosecutions: A Potential Anticorruption Tool in English Law Tamlyn Edmonds and David Jugnarain 100 Legal Remedies for Victims of Corruption under U.S. Law Richard E. Messick 114 South Africa: Public Trust Theory as the Basis for Resource Corruption Litigation Elmarie van der Schyff 121 Empowering the Victims of Corruption: The Potential of Sleeping Third-Party Beneficiary Clauses Abiola Makinwa 130 Litigating Corruption before International Human Rights Tribunals: SERAP before the ECOWAS Court Adetokunbo Mumuni 136 Litigation Lessons from Contesting a Corrupt Land Grab in Cambodia Bunthea Keo 145 Challenging Pillage: Argor-Heraeus and Gold from the Democratic Republic of Congo Bénédict de Moerloose 153 Endnotes 2 LEGAL REMEDIES FOR GRAND CORRUPTION: THE ROLE OF CIVIL SOCIETY FOREWORD | KEN HURWITZ SEEKING LEGAL REMEDIES FOR GRAND CORRUPTION Ken Hurwitz is the senior legal officer for the Anticorruption Program of the Open Society Justice Initiative. This collection of articles exploring past experiences and future opportunities for civil society to advance accountability for grand corruption1 has something of a long prehistory. In 2005, the Open Society Justice Initiative published Legal Remedies for the Resource Curse, which aimed to digest experience in using law to combat corruption in the natural resource extraction industries. That book grew out of the Open Society Foundations’ work in the area of resource extraction transparency. At the time, OSF’s work included important engagement in the Extractive Industries Transparency Initiative and support for and collaboration with many other complementary efforts, such as Publish What You Pay, which presses for governments and corporations to adopt open and accountable structures and practices in the resource extraction sector; Global Witness, which exposes the often horrendous human rights and environmental consequences of resource corruption; and the establishment of Revenue Watch Institute, now the Natural Resource Governance Institute, which advises policy makers, national governments, and civil society on the implementation of global norms that can effectively deliver transparent and accountable resource governance. What was largely missing from this package, we thought, were strategies aimed at accountability, and the Legal Remedies book was the Justice Initiative’s effort to jump-start such work by taking the initial step of assaying the field as it was, to develop an informed basis on which to advance. While the book found many valuable precedents and incipient encouraging trends, its overall assessment was somewhat bleak: Where legal remedies for natural resource corruption exist, they are often difficult to activate. Although many countries recognize corporate criminal liability, some have been slow to extend its application to bribery or other spoliation-related crimes, or the full range of predicate offenses that give rise to a charge of money laundering. There is little sustained will to pursue offenders systematically. FOREWORD: LEGAL REMEDIES FOR GRAND CORRUPTION 3 In response, particularly, to this problem of sustained will, the book argued: Beyond government commitment, the pursuit of bribing companies and laundering banks requires strategic and innovative thinking by dedicated lawyers and civil society actors. In some cases, efforts should focus on the filing of complaints and launching of court cases to secure enforceable legal remedies. In others, zealous advocacy is needed to generate political will, gather evidence or promote the adoption of transparency mechanisms. Often, comprehensive reform will be possible only once offending regimes have fallen, or when the illicit activities of companies or banks are exposed through media attention. Though in recent years we have come to see grand corruption through a broader lens than the strictly resource-focused perspective we started with, the Justice Initiative’s anticorruption efforts have been largely guided by insights in the Legal Remedies publication, beginning with two cases we developed with non-governmental organization (NGO) partners Asociación Pro Derechos Humanos de España (APDHE) and EG Justice, which were filed, respectively, in 2007 and 2008. Both cases sought legal remedies for high-level corruption related to oil extraction in Equatorial Guinea. Both built on massive evidence of corruption uncovered in 2003-2004 by the U.S. Senate’s Permanent Subcommittee on Investigations: The subcommittee’s examination of anti-money laundering compliance at the former Riggs Bank, in Washington DC, found that, for years, Riggs had disregarded its anti-money laundering obligations with regard to Equatorial Guinea and had turned a blind eye to evidence that the bank was handling the proceeds of foreign corruption, allowing and sometimes actively facilitating suspicious financial activity. At the time, counting the Equatoguinean governmental accounts together with the personal accounts of its ruling clan, “Equatorial Guinea” made up the largest client at Riggs. The Justice Initiative’s first case, APDHE v. Equatorial Guinea, was filed in the African Commission on Human and Peoples’ Rights, and argued that the Government of Equatorial Guinea should be held accountable for violation of Article 21 of the African Charter on Human and Peoples’ Rights,2 for its systematic collusion in the spoliation of the country’s natural resource wealth by the ruling Obiang family. The second case, APDHE v. Obiang Family, was filed in Spain. In that case, APDHE acted as acusador popular, a kind of “people’s prosecutor” or civil party under Spanish law. (For more, please see this volume’s “Laundering the Proceeds of Corruption in Equatorial Guinea: The Our experience with these cases has shown both the challenges and the possibilities of seeking legal remedies for high-level corruption. 4 LEGAL REMEDIES FOR GRAND CORRUPTION: THE ROLE OF CIVIL SOCIETY Case before the Spanish Courts,” by Nuria García Sanz.) The case in Spain targeted a series of transactions exposed by the Senate Subcommittee in which, as signatory (jointly with his son or his nephew) on the Equatorial Guinea Treasury’s oil revenues receipts account at Riggs, the Equatoguinean president paid more than $26.5 million into a Spanish account at Banco Santander, in the name of a Panamanian shell company that the subcommittee believed “may be partly or wholly owned by the President of Equatorial Guinea.” Our experience with these cases has shown both the challenges and the possibilities of seeking legal remedies for high-level corruption. After four years, the African Commission dismissed the “Article 21” case for failure to exhaust domestic remedies. The commission concluded that the victims did not sufficiently prove a “clearly defined jeopardized situation if they tried to exhaust domestic remedies,” rejecting arguments that efforts to seek recourse against Obiang family corruption in Equatorial Guinea’s courts would be futile and likely extremely dangerous, in light of the country’s documented record for systematic governmental corruption, sham justice, and repressive brutality. The commission also rejected (but did not
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