Professor Juliet Sorensen (Northwestern University Pritzker School of Law) and Northwestern Law students David Hall and Kobby Lartey recently attended the Seventh Conference of States Parties to the United Nations Convention Against Corruption in Vienna, Austria. See here  for more information on the Conference. This post is from David Hall.
This winter marks the 20th anniversary of the Organization for Economic Cooperation and Development’s Anti-Bribery Convention. The OECD plans to celebrate this milestone with the release of a new Study on the Detection of Foreign Bribery, examining the different ways of detecting bribery and creating a new set of best practices in investigation and detection. The full study won’t be available until December 12th, but the group previewed the study at this year’s Conference of the States Parties to the UN Convention Against Corruption.
One of the most effective means of discovering corruption is through the help of journalists and whistleblowers. Of the 43 countries who have signed the Anti-Bribery Convention, 16 confirm that they have detected bribery thanks to the participation of whistleblowers. The recent examples of the Panama and Paradise Papers prove the massive scope of corruption which whistleblowers can bring to light. Notably, 18 countries have introduced or strengthened whistleblower protection in response to peer evaluation reports and recommendations from the OECD.
But unfortunately, these protections aren’t enough to eliminate all of the dangers which whistleblowers face. Casey Kelso, Director of Advocacy for Transparency International, pointed out the 57 journalists and bloggers who have been killed in the past year while investigating allegations of corruption. This includes the recent car bombing of a journalist working with TI to track payments across the Azerbaijani border. He estimated that roughly 90% of those deaths will go unprosecuted.
Even without the threat of death or violent reprisal, journalists and whistleblowers in corrupt societies risk the criminalization of behavior necessary to perform their jobs. Governments have done everything from outlawing encryption of press communication to dramatically expanding the definition of defamation in order to threaten journalists with criminal sanctions. The difficulty of reform in these cases is undercut not only by these perverse government actions, but also by cultural sentiment against whistleblowers, who are seen as “snitches.” Unless these countries see significant change in that negative national sentiment, they may not have the protections necessary to allow whistleblowers to assist in uncovering bribery.
Still, David Fielder, Chief of Investigations and Forensic Audits for the World Bank, remains optimistic about the continued support of whistleblowers in the fight against corruption. His organization has seen an increase in the number of whistleblowers coming forward with information about bribery schemes. He credits this trend to a reduction in the two primary obstacles to successful whistleblowing: (1) hopelessness about the odds of success, and (2) a likelihood of ceding anonymity.
The first concern has reduced dramatically following the massive leaks of the past few years. When potential whistleblowers think of their odds of success, they have more examples of good outcomes for whistleblowers now than ever before. They are therefore less likely to second guess their instinct to come forward with a story based on the fear that it won’t have any traction. The concern for a loss of anonymity is due in part to the same fear of violent retaliation which Mr. Kelso mentioned earlier. But it is also due in part to the fear that coming forward will lead to the whistleblower’s own prosecution. After all, the best whistleblowers will often be complicit to some degree in the corruption scheme, and ill-advised anti-corruption laws might hold them accountable for that without consideration for their cooperation.
To help combat that effect, Mr. Fielder thinks that the World Bank has benefited greatly from the ability to report bribery to someone other than law enforcement authorities. Whistleblowers can mitigate their risks of criminal liability by allowing these third parties to translate their reports to appropriate law enforcement agencies, even if the substantive laws governing the bribes would penalize the whistleblowers for going directly to law enforcement. Perhaps a better approach would be to adopt legislation which incentivizes whistleblowing in all cases. But in settings with regressive anti-bribery laws or in which the law enforcement agencies themselves have been corrupted, this third-party reporting is essential to encouraging whistleblower participation.
Without whistleblowers, our efforts to uncover and prosecute bribery schemes would not be nearly as effective as they are now. It is therefore essential toencourage countries to protect and incentivize whistleblowers to assist in any way possible. To do so, countries will need to commit to valuing whistleblower contributions and helping shape the national conscience regarding whistleblower activities. This means they should not criminalize journalistic behavior and they should investigate and prosecute the deaths of journalists. They should also create reporting mechanisms which incentivize whistleblowing. Finally, countries should create databases of information such as registers of beneficial ownership which are available to the public and may be used as tools for whistleblowers.
Practical point: if you are interested in learning about other means of detecting corruption in international business transactions and would like to receive a copy of the forthcoming study after its publication, please contact the OECD Anti-Corruption Division Communications Officer, Daisy Pelham (firstname.lastname@example.org ).
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