The United Nations Convention Against Transnational Organized Crime came into force September 29, 2003 after being ratified by over 40 countries. It is the first legal-bound UN treaty of its kind in this field. One month later, on October 31 the UN General Assembly adopted the United Nations Convention Against Corruption. In a speech to the 191-nation assembly that very day, UN Secretary-General Kofi Annan said the adoption of the new anti-corruption convention sends a clear message that the international community is determined to prevent and control corruption.
While hailing the two above conventions as useful instruments to help fight corruption on a global scale, Prof. Zhu Wenqi from Renmin University of China pointed out that "they cannot produce an instant effect under the current circumstances." As the only Chinese prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Zhu is fully aware the difficulty of international cooperation when pursing criminals at large. In his words, actually, "the hardship goes beyond imagination."
Corrupt officials on the run
Official figures indicate that at least 4,000 suspected corrupt officials have fled China, taking with them more than 5 billion yuan (some US$600 million) in illicit money.
So far, extradition has been generally regarded as the most effective way to crack down crimes concerning escaped corrupt officials. Since 1994 China has signed bilateral extradition treaty with 19 countries, but not including the United States, Canada and Australia, to which corrupt officials usually fled. Without an extradition treaty, on the one hand, the above countries are under no obligation to help China track down escaped criminals; on the other, due to a wide discrepancy in political system, legal framework, and outlook on human rights, they often become potential hideouts for corrupt Chinese officials at large.
According to Prof. Zhu, after fleeing abroad, those escaped corrupt officials always tried to cover up their economic crimes; very often, they whitewashed their escape as due to "political persecution." Since the extradition of political dissidents is in violation of international law, it has made extradition in such cases extremely difficult.
Death penalty is another obstacle standing in the way of extraditing escaped criminals, as China has not yet abolished death penalty. However, in some countries, such as Canada, it is banned to extradite a fugitive to a country where he or she may face capital punishment. Citing notorious Lai Changxing as an example, Prof. Zhu said probably death penalty consideration could explain Canada's reluctance to return this China's most-wanted fugitive.
Lai used to be the head of a smuggling ring in Xiamen, southeast China's Fujian Province. From 1996 to 1999, Lai and his accomplices smuggled goods worth some 53 billion yuan (US$6.38 billion), with evaded tax totaling 30 billion yuan (US$3.6 billion). Lai fled to Canada in 1999 with his wife and three children.
At present, international cooperation cannot yet meet the anti-corruption needs, leading to the fact that many escaped corrupt officials remain beyond China's reach. Meanwhile, since the country's own legal system is far from being perfect, China has yet to work out effectual measures to recover embezzled money.
'Milestone in international cooperation'
Shao Shaping, professor of law at Renmin University of China, hailed the United Nations Convention Against Transnational Organized Crime as "a milestone in the history of international cooperation to combat transnational crime."
The convention has extended international cooperation from jurisdictional and procedural coordination to the field of substantive law, Shao said. Since corruption is affirmed as a criminal act in the convention, all signatories can no more refuse to provide the prescribed judicial help on the pretext of domestic law. Consequently, hindering political factors, which China encountered more than once in its pursuit of escaped criminals, will be weakened greatly.
In addition, for the first time, the convention couples anti-corruption with anti-money laundering. As a result, a comprehensive legal system merging criminal proceedings, administrative lawsuit and financial investigation is expected to be established to curb transnational crimes. This change can help ascertain and expropriate escaped corrupt officials' illegal properties. According to the convention, a signatory should give priority to returning confiscated illegal properties to the aggrieved party by request. Through this channel, China is hopeful to be able to recover its embezzled money, Shao said.
Nonetheless, despite the convention's backing, the road to successful international cooperation in anti-corruption is not smooth yet. The convention has merely provided a legal framework. For each specific case, there will be tough negotiations between China's judicial, procuratorial and diplomatic sectors and the relevant foreign government. Legal procedure requires China to provide ironclad proof of one's guilt before demanding a foreign country to extradite the criminal. Owing to the imperfection of China's evidence-collection system, its unfamiliarity with other countries' domestic law, and the discrepancy in legal ideas, at present, China "does not know well how to benefit from relevant international laws and regulations to attain its own goal," said a jurist who asked not to be named.
Improvement of legal system urged
Internationally, anti-corruption has become the trend of the times. At the 3rd Global Forum on Fighting Corruption and Safeguarding Integrity, which was held May 29-31, 2003 in Seoul, the Republic of Korea, US Secretary of Commerce Donald Evans said that corruption had not only infringed upon the interests of the people but harmed democracy at the root. Evans promised that the United States would take concrete measures to make a full investigation on funds of illicit origin, and return such funds to their countries of origin.
In spite of the favorable international situation, the two newly adopted conventions' significance to China's ongoing fight against corruption would be much less than expected, as long as China's domestic legal system remains not integrated with the international law, an expert of law pointed out.
Therefore, to better promote international cooperation, perfecting its domestic legal system is a must for China. According to Prof. Shao Shaping, in criminal law, it's necessary to define transferring accepted bribes by means of money laundering as a crime; in financial law, a "counter-money laundering law" should be formulated to tighten up the management of the monetary system and finally put an end to money laundering. At the same time, specific regulations also need to be worked out to standardize global judicial cooperation in criminal matters, Shao said.
Prof. Zhu Wenqi has been appealing for the establishment of an effective global cooperation system to combat corruption. "At Seoul's forum, officials and experts from many countries were concerned about China's fight against corruption," Zhu said. "No matter where he or she has fled, a grafter has to know that in the world there doesn't exist a shelter for criminals at large."
Article 3 of the United Nations Convention Against Transnational Organized Crime explicitly stipulates that the convention shall apply to the prevention, investigation and prosecution of the offence that "is transnational in nature and involves an organized criminal group." So, strictly speaking, if a crime is transnational in nature but doesn't involve an organized criminal group, which is often the case with escaped Chinese corrupt officials, signatories are under no obligation to offer any help.
Besides the limitations in the convention's application scope, China has to face several thorny problems in the hunt for escaped corrupt officials, for example:
Mostly, corrupt Chinese officials have tried to flee to Western developed countries to seek refuge from punishment. So far, except for Spain, Canada, New Zealand and France, few of the developed countries have ratified the Convention Against Transnational Organized Crime.
As mentioned before, none of the 19 countries China has signed bilateral extradition treaty with is a developed country.
Recently, the US Immigration and Customs Enforcement (ICE) took measures to confiscate the property of foreign officials suspected of corruption. However, at least in the near future, the United States does not have the intention to sign the bilateral extradition treaty with China. Meanwhile, the long-standing legal barriers impeding international extradition cannot be automatically removed with the adoption of the two conventions. Traditionally, factors affecting extradition include death penalty, "political persecution," discrimination, torture, and lack of just trial, which have often offered excuses for some countries to refuse extradition.
On Friday, UN Secretary-General Kofi Annan said the new anti-corruption convention is a remarkable achievement and compliments the Convention Against Transnational Organized Crime. However, all in all, China's task of chasing its escaped corrupt officials is arduous and the road ahead is still long. Anti-corruption requires both further domestic efforts and sustained cooperation from the international community.
(China.org.cn, translated by Shao Da, November 3, 2003)