Integrating Human Rights in the Anti-Corruption Agenda - The ICHRP

IV.
On Tensions between Anti-Corruption and
Human Rights Practice
The first ICHRP report on corruption showed how acts of corruption affect the
enjoyment of human rights and often violate rights. The current report argues that
human rights principles can contribute usefully to anti-corruption programmes.
Why then, if they have complementary skills and interests, have human rights and
anti-corruption organisations not collaborated more regularly? To an extent, it is
because anti-corruption organisations were perceived to work with governments
and to be more “official”, whereas human rights organisations have a reputation
for being adversarial. It is also because many anti-corruption specialists find the
language and concepts of human rights alien and abstract and feel that “human
rights approaches” do not necessarily provide practical solutions. There are good
reasons to bring the two movements closer together; however, collaboration will
require both sides to overcome differences of vocabulary and practice.
A particular issue is that on occasion anti-corruption practitioners have argued
that human rights principles impede effective anti-corruption law enforcement,
while human rights advocates sometimes claim that certain anti-corruption
practices violate human rights principles. These “tensions” reflect the constant
unease that characterises relations between law enforcement and human rights.
In fact, a quite narrow range of concerns arise that are specific to corruption;
most involve procedures of investigation and prosecution.
At the root of these claims is a law enforcement argument. As corruption
has become more entrenched or more sophisticated, some anti-corruption
advocates have argued that more robust and more intrusive law enforcement
procedures are required, not least because acts of corruption are harder than
most offences to prosecute successfully since they occur in secret, usually
involve many accomplices, often have no direct victims and rarely leave a clear
trail of evidence. The consequence is that corruption is extremely difficult to
prove and prosecute.
Infringements of human rights have been identified predominantly in three
situations:
(i) When the formulation of the offence of illicit enrichment violates the
human rights principles of presumption of innocence and burden of
proof and the guarantee against self-incrimination;
(ii) When special investigative techniques violate the rights to privacy and
a fair trial;
(iii) When asset recovery procedures clash with property rights and with
presumption of innocence.
Integrating Human Rights in the Anti-Corruption Agenda: Challenges, Possibilities and Opportunities 63