Is There an Emerging Custom of Universal Jurisdiction over Corruption?
By Juan Carlos Portilla
“We hang the petty thieves and appoint the great ones to public office,” said Aesop. These words describe the lavish lifestyle of the Equatorial Guinea Vice President Teodorin Obiang. In 2017, the World Bank estimated that 76.8 percent of the population in Equatorial Guinea lived in poverty, while in the same year, a French court convicted Obiang of embezzling USD 174 million of the country’s public money. Equatorial Guinea petitioned the International Court of Justice (ICJ) to grant an interim request to halt the French case against Obiang on the grounds of diplomatic immunity. The ICJ decided that it lacked jurisdiction to prevent France from prosecuting Obiang. In addition to French investigations targeting African politicians, the U.S. indicted Venezuelan president Nicolas Maduro with money laundering and corruption, among other charges, in March 2020. Money laundering and corruption go beyond borders, and now, the prosecution against money launderers and corrupt politicians might be becoming transnational too. This is an important development because the Obiang case and the Maduro indictment might be an indication of an emerging rule of customary international law establishing universal jurisdiction over transnational crimes, such as money laundering and corruption.
To understand whether the ICJ has habilitated governments across the globe to exercise extraterritorial jurisdiction over money launderers, it is important to address the arguments discussed in Equatorial Guinea v. France and the lack of judicial precedent in the decisions of the court.
Equatorial Guinea and France signed and ratified the 2000 United Nations Convention against Transnational Organized Crime, also known as the Palermo Convention. The adoption of the Palermo Convention represents a critical move in the war on organized crime, including money laundering and corruption. This is crucial because corrupt politicians have always needed to launder their criminal proceeds, which is a predicate crime pursuant to the Palermo Convention. Both countries also accepted the ICJ’s jurisdiction in the event of judicial disputes related to it.
In 2016, Equatorial Guinea brought its judicial dispute to The Hague, accusing France of violating the principles of the sovereign equality and non-interference in the internal affairs of another state by prosecuting Obiang for corruption and money laundering. In Equatorial Guinea v. France, however, the ICJ reasoned that state parties to the Palermo Convention are mainly obligated to introduce the Convention provisions into their domestic legislation. As both countries signed and ratified the Palermo Convention, the ICJ concluded that the Convention offenses, including corruption and money laundering, might be criminal offenses in both Equatorial Guinea and France pursuant to their domestic legislations.
Obiang embezzled public funds in Equatorial Guinea, and laundered the criminal proceeds in France. Under the ICJ’s reasoning, the Palermo Convention does not provide Equatorial Guinea the exclusive jurisdiction to prosecute Obiang for corruption, and does not exclude France from exercising its jurisdiction over him for money laundering. Since France and Equatorial Guinea both adopted legislation to criminalize money laundering, it follows that the principle of extraterritorial jurisdiction might operate against the offenses set forth in the Palermo Convention.
Let us look at the ICJ’s reasoning with the following example: State A and State B are signatories to the Palermo Convention. They ratified it in accordance with their constitutions and adopted laws on the crimes established. A citizen of State A committed corruption in State A’s territory. He then laundered the proceeds of his corruption in State B. It then follows that under this scenario, State B might prosecute the citizen of State A in its territory for the crimes of corruption and money laundering.
Under the ICJ Statute, the court’s decisions have no binding force but for the parties involved in the dispute. In other words, the ICJ’s views in Guinea v. France enjoy no judicial precedent. However, in this case, the ICJ made a persuasive interpretation of the Palermo Convention and the principle of extraterritorial jurisdiction over money laundering and corruption.
It is uncertain whether the ICJ has habilitated governments across the globe to exercise their extraterritorial jurisdiction over money laundering and corruption. Nonetheless, there is hope. Under the ICJ Statute, customary international law emerges from state practice accepted as law. The French court’s conviction of Obiang and the U.S. indictments against Maduro are official government behaviors reflecting state practice in the field of transnational prosecutions over transnational crimes. Thus, the Obiang case and Maduro indictment give the impression that governments are sailing toward the direction from which international law is blowing.
Juan Carlos Portilla is an international lawyer who lectures on international law at the Sabana University School of Law in his native Colombia. He was a Visiting Scholar at the Boston College Law School and worked for the Colombian government and a multilateral bank in Honduras. After earning his Master’s Degree in International Law from the Fletcher School of Law and Diplomacy, Juan Carlos has devoted his legal professional career as an Anti-Money Laundering Professional in various financial institutions in the U.S.
“Golden Lady Justice, Bruges, Belgium” by Emmanuel Huybrechts is licensed under CC BY 2.0
