Research and policy agenda concerning issues of human rights and corruption

Although there has been increasing attention on the intersections, complementarities, and tensions between anti-corruption and human rights agendas, much research is still required. U4 advances the research frontier to find ways that development-, political-, and legal actors can implement methods that work.

The research agenda can be grouped into related issue clusters: the role of the state, the role of victims, and proof and measurement issues.

States and doctrine

A number of questions pertain to theoretical underpinnings. What is the additional utility, if any, of a stand-alone right to be free of corruption? What would a minimum standard for compliance look like, given that no society is corruption-free? Would the right to be free of corruption therefore be limited to a core set of large-scale, egregious, or particularly harmful acts? Or does it make more sense to focus on state duties to protect or ensure existing rights, or on the procedural aspects common to the anti-corruption and human rights agendas? More research is needed on what legislators and courts that have confronted the issue have actually done, as well as further understanding of the implications of each approach.

One of the most urgent topics involves changes to both anti-corruption and human rights law to better respond to situations where systemic and high-level corruption affects a state’s ability to respond. Anti-corruption treaties depend on the state’s commitment to prevent, punish, and cooperate with other states, but in more and more cases the prosecutors and courts, or finance or regulatory agencies, have been captured by corrupt actors and so the state is uninterested in any of those commitments. Research that is focused on how states can, and have, successfully overcome these situations urgently needs to be shared. Are there ways in which third-party states can usefully assist?

Victims

A human rights approach highlights the role and rights of victims. International human rights law proclaims the centrality of victims and their rights to truth, justice, reparation, and measures of non-repetition. This in turn raises many research questions. To begin with, does characterising those harmed by corruption as victims empower them or, on the contrary, does it create unwelcome narratives of weakness and dependency? Does putting a face on the negative effects of corruption build support for anti-corruption initiatives and alliances with other social movements? Or does a victim-focused discourse unrealistically raise expectations? These questions are particularly important in cases of collective and social harm.

It would also be helpful to catalogue and compare forms of representation for victims, including directly – as collective victims – through anti-corruption and other types of non-governmental organisations, through state attorney/procurator/ombudsman offices and the like, and to explore how best to balance (i) victims’ rights, and (ii) state administrative and financial concerns with large numbers of potential victims, and the due process rights of defendants. For this purpose, the existing database on victims’ participation would be a good starting place.

Evidence and damages

In cases where accountability is sought in international bodies, issues of evidence arise even though the rules of evidence are generally fairly liberal. Indeed, one of the objections to a human rights-based approach to corruption is that human rights bodies are ill-equipped to deal with technical proof of financial crimes. Expert testimony (and specialised training of lawyers) can help with some of these problems. But can the evidentiary approaches of human rights courts used in other cases where the essence of the violation includes its secrecy (like enforced disappearances), be adapted to dealing with systemic corruption? To what extent can shifts in the burden of proof or the use of presumptions in human rights cases be applied in the grand or systemic corruption context? Here too, both doctrinal and comparative work is needed.

Armed conflict settings are particularly prone to both corruption and human rights violations. There is considerable research on corruption as a cause of, and enabling factor during, armed conflict, and some studies on ‘captured peace,’ but more research needs to consider how to avoid state capture in post-conflict policies, how transitional justice methods can (or should) apply to grand corruption, and how the law of war intersects with anti-corruption law and practice.

Issues of causation arise in corruption cases involving victims, as they do in many civil damages scenarios. Even if corruption is an essential cause of a rights violation, how close a proximate or legal cause limit should be applied? Should these rules be different in cases involving social harm? Should they take into account the power differentials and access to information disparities inherent in many corruption cases? All these questions are contentious and require further study as well as case-based elaboration.

Finally, more work is needed on the measurement and proof of damages. As noted earlier, compensation for harm in international human rights law is broad, but more work is needed on how to delimit and capture both pecuniary harms and moral damages for individual, group, and social harm.

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