Negative measures
The contents of the global anti-corruption framework can be divided into negative and positive measures (cf. Pasculli, 2012). Negative measures aim to prevent and respond to corruption by restricting the rights and liberties of individuals and entities (e.g. criminal law and international sanctions). Positive measures aim to resolve the causes of corruption by promoting values of integrity through a range of initiatives to support individuals and organisations in the fair and lawful pursuit of their rights and interests and in the development of virtuous practices (e.g. codes of conduct, corporate social responsibility, education, training and information). The studies in this book reveal that the anti-corruption framework is unbalanced towards negative measures and that these are ineffective and insufficient. Negative measures can have, at best, retributive or deterrent effects, but they can never resolve the cultural, socio-psychological and political causes of corruption, as identified in our previous studies (Pasculli and Ryder, 2019a, 2019b; Pasculli, 2019b).
Criminal law: the escape from punishment
As a social phenomenon, corruption goes beyond criminal conduct and covers also illegal or merely unethical behaviours (cf. Topal, Chapter 15; Pasculli and Ryder, 2019b; Ellis and Whyte, 2016; Whyte, 2015; Beetham, 2015), such as, for instance, tax avoidance (cf. Blanco and Arjona Sanchez, Chapter 11 and MacLennan, Chapter 12). Nevertheless, as international conventions define corruption as a set of criminal offences,[1] criminal law occupies a prominent place in anti-corruption (cf. Di Bitonto and Galluccio Mezio, Chapter 2; Johnson, Chapter 3; Provolo, Chapter 4).
The findings of our studies confirm that traditional national criminal justice is incapable to both retribute and prevent transnational corruption. First, criminal law and justice remain essentially local. Definitions of corruption offences vary from state to state and even internally the complexity of corrupt behaviours may mislead prosecutors in identifying the most appropriate offence (Johnson, Chapter 3). Territorial jurisdictional limits make the investigation of transnational crime and the apprehension and prosecution of transnational offenders very difficult (cf. Fouladvand, Chapter 5; Di Bitonto and Galluccio Mezio, Chapter 2). Second, corruption is committed in such secrecy that it is often very hard for state authorities to even detect it unless whistle-blowers or companies report misconduct (Lui and Apampa, Chapter 10; Lui and Turksen, Chapter 9). Third, many corruption offences are committed or orchestrated by corporations. The obligation set by UNCAC[2] to establish the liability of legal persons for corruption offences helped overcome the anachronistic principle societas delinquere et puniri non potest (Di Bitonto and Galluccio Mezio, Chapter 2; Provolo, Chapter 4), but the prosecution of corporations is still hindered by ‘almost insurmountable’ difficulties (Fouladvand, Chapter 5), such as impervious evidence-gathering; ineffective sentencing or social collateral damages; the risk of relocation of companies with consequent loss of employment and tax revenues (see Fouladvand and Palmer, Chapters 5 and 6). Deferred prosecution agreements (DPAs) adopted by states such as the US, the UK, Australia, Canada and Argentina to respond to such difficulties and improve corporate compliance and minimise future crime risks (Fouladvand, Chapter 5; Palmer, Chapter 6, McStravick, Chapter 7) are still highly problematic (cf. Grasso, 2016: p. 396; Ryder, 2018a: p. 250). DPAs can become a way for corporations to ‘buy their way out of prosecution’ (Fouladvand, Chapter 5), thus frustrating justice (cf. Palmer, Chapter 6), retribution and deterrence (Ryder, 2018a: p. 262). The risk is that DPAs turn into an easy institutionalised escape from punishment. Such an escape becomes absolute when the abdication to corporate prosecution is not compensated by the prosecution of individual offenders (employees, managers or executives). National authorities are often incapable or reluctant to prosecute the executives responsible for financial crimes (Fouladvand, Chapter 5; Ryder, 2018a), not only because of the shortcomings of national criminal justice (Palmer, Chapter 6), but also because dubious political considerations, well exemplified by the full pardon granted by the US President Donald Trump to Conrad Black (Fouladvand, Chapter 5).
Sanctions: the escape from criminal law
An almost opposite reaction to the ineffectiveness of national criminal justice is the imposition of restrictive sanctions - such as asset freeze or travel bans - on targeted individuals or organisations involved in transnational grand corruption (Pasculli, 2019a: p. 218; Bradshaw, Chapter 8). Sanctions are imposed by international organisations such as the UN (Pasculli, 2012) or the WTO (cf. Manacorda and Grasso, 2018; Grasso, 2019a) and by states, either in implementation of international obligations or autonomously (Bradshaw, Chapter 8; cf. also Smith and Dawson, 2018). Despite their contents are analogous to criminal sentences, sanctions do not comply with principles and safeguards of criminal law and justice, international human rights law, and the rule of law (cf. Bradshaw, Chapter 8; Pasculli, 2019a: p. 219). They can become, therefore, a shortcut to ‘punish’ transnational offenders when gathering evidence and bringing them to trial would be impossible or to pre-emptively neutralise individuals deemed to be somehow dangerous (ampHus, Pasculli, 2012). The escape from the constraints of criminal law, however, is not a guarantee of effectiveness (cf. Ryder, 2018b and 2015; Pasculli, 2015): research suggests not only that sanctions have a minimal deterrent effect, but also that they can unintendedly increase corruption (Biersteker et al., 2013; Kamali et al., 2016).
