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."
Thorny
problems
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)