THE 2ND ALL KENYAN MOOT COURT COMPETITION
14TH TO 15TH FEB. 2014
IN
The Supreme Court Of Padma
Between
Rights Shield (Appellant)
And
The Padmese Government (Respondent)
______
RESEARCH PAPER ON GRAND CORRUPTION AS A CRIME AGAINST
HUMANITY
TEAM CODE: 101
By:Kaindo Alex Kariuki
Introduction:
This is a paper written and researched with a view to arguing out whether or not the crime of “Grand Corruption” in a country can amount to a “Crime Against Humanity” vis-a-vis the description of crimes against humanity outlined in Article 7of the Rome Statute. Then the paper shall proceed to examine arguments for the affirmative position, that is, “GRAND CORRUPTION IS A CRIME AGAINST HUMANITY”, followed by assertions for the negative whereby it will be proven that “GRAND CORRUPTION IS NOT A CRIME AGAINST HUMANITY”. Finally, the writer of this piece shall conclude by giving his/her own observations – not to mention stance – regarding the aforementioned topic of discussion, citing the merits or otherwise. All of the above works will take place with continued reference to the facts elucidated in the Moot Compromis.
GROUND I: GRAND CORRUPTION IS A CRIME AGAINST HUMANITY
According to the Rome Statute of the I.C.C. Explanatory Memorandum, a crime against humanity is defined as ‘... a particularly odious offence in that it constitutes a serious attack on human dignity, a grave humiliation or a degradation of human beings.[1]Crimes against humanity are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this
policy) or of a wide practice of atrocitiestolerated or condoned by a government or ade factoauthority.[2]Article 7 for its part (which dwells on the actual crimes against humanity) claims in subarticle 1 that: “For the purpose of this Statute, ‘crime against humanity’ means any of thefollowing acts when committed as part of a widespread or systematic attackdirected against any civilian population, with knowledge of the attack:(a) Murder;(b) Extermination; (c) Enslavement;(d) Deportation or forcible transfer of population;(e) Imprisonment or other severe deprivation of physical liberty in violation offundamental rules of international law;(f) Torture;(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforcedsterilization, or any other form of sexual violence of comparable gravity;(h) Persecution against any identifiable group or collectivity on political,racial, national, ethnic, cultural, religious, gender as defined in subarticle 3, or other grounds that are universally recognized as impermissible underinternational law, in connection with any act referred to in this subarticle or any crime within the jurisdiction of the Court;(i) Enforced disappearance of persons;(j) The crime of apartheid;(k) Other inhumane acts of a similar character intentionally causing greatsuffering, or serious injury to body or to mental or physical health.”[3]
Crimes against humanity as described above cover actions that have a common set of features[4] which include:
(i)Offences that constitute a serious attack on human dignity or a gravedegradation of human beings[5]–the people of Padma have been subjected to lower standards of living as evidenced in paragraph 10 of the Compromis, where high infant & maternal mortality rates, low enrolment rates for primary education and high poverty levels led to Padma doing so poorly on the Millenium Denvelopment Goal Watch rankings.
(ii)Acts that are not sporadic but widespread and systematic acts that form part of government policy – Padma are ranked at the bottom of the Corruption Perception Index[6]where half of the budget is lost to corruption. This is indicative of a Padmese Government that is incredibly tolerant to corruption which has eaten it up much like a malignant cancer.
(iii)Attacks directly instigated against civilians– in C.K. et al v The Commissioner of Police et al[7]it was held that any government is responsible for the failure of its relevant authorities to conduct prompt, effective, proper and professional investigations into complaints by its citizens. Therefore when the State of Padma neglected the health situation after spending was slashed by 35%, the mass ‘extermination’ of the children that died amounted to a crime against humanity.
In a 2011 article by KHOU News in the US, a majority of the populace in America perceived the negligent high radiation levels in drinking water in Houston, Texas that had previously been covered up by the T.E.C.Q. (Texas Commission on Environmental Quality) had breached Federal Lawslegislated upon by the E.P.A. (the US Environmental Protection Agency) and when that led to the aggravation of a 3o-year-old mother’s Thyroid Cancer, it was deemed to be a crime against humanity.
The following statement by Prof. Larry Everest – uttered in reference to the US ‘war on terror in Iraq’ – sums up the meaning of crimes against humanity as brought out in the aforementioned features with respect to the facts in the Compromis: “I can’t think of a more egregious crime against humanity than the destruction (the deliberate, wilful, conscious destruction) of the habitat of all living things on this planet, and the environment...all for global domination, and the endless accumulation of economic wealth.”[8]
When it comes to the displacement of the KILIKI tribe from their original homeland[9], it amounts to the commission of a crime against humanity by the government of Padma because it falls under the ambit of “DEPORTATION...”[10] and “PERSECUTION...”[11] under the Rome Statute establishing the I.C.C. Further, the loss of livelihood amongst the people of Padma[12] amounted to a derogation of their labour right to employment which according to Phillip Alston[13] is contrary to fundamental human rights which amounts to a crime against humanity since it satisfies the requisite features. Lastly, it has been claimed that “Every year, corruption kills as many as140000 childrenworldwide, by depriving them of medical care, food, and water.”[14] If this is not a crime against humanity, then all the pre-requisites made beforehand are all hogwash.
GROUND II: GRAND CORRUPTION IS NOT A CRIME AGAINST HUMANITY
Padma did not abandon any of its obligations to its citizens and therefore has not committed any crime against humanity. It thus goes without saying that the so called requirements for an act to constitute a crime against humanity were not satisfied.
Rights Shieldhave falsely accusedthe State of Padma of committing offences that constitute a serious attack on human dignity or a grave degradation of human beings.[15] They claim the people of Padma have been subjected to lower standards of living as evidenced in paragraph 10 of the Compromis, where high infant & maternal mortality rates, low enrolment rates for primary education and high poverty levels led to Padma doing so poorly on the Millenium Denvelopment Goal Watch rankings which in essence is as a result of a deficiency in government funding[16].
The resettlement of the KILIKI community who now live in tented camps is a temporary issue that the Government of Padma is working on. This relocation process is not yet done and therefore Rights Shield should not make hasty generalizations that the State of Padma has failed. Much as the process has taken a longer period of time than was expected, the Padmese Government has pledged its intention to fulfil its promise to have them relocated to justifiable settlements as soon as is reasonably practicable. It is the unfortunate circumstances of the current economic and social situation that has left Padma with limited economic capability that is the problem and not its lack of commitment to its people. Hence, Rights Shield should not rush to assume that a plan is not in the pipeline to ensure that the necessary is done.
The next feature that Rights Shield claim the Padmese Government hasfailed to live up to with regards to crimes against humanity includes acts that are not sporadic but widespread and systematic acts that form part of government policy.[17] The government of Padma has not blatantly committed this offence by its inaction and subsequent tolerance of grand corruption in the country, particularly in the very corridors of power. This is evidenced in paragraph 22 of the Compromis, where it states that the Chief State Prosecutor declined to duly prosecute Zana Tito, claiming his hands were tied by bigger forces. The Government has not been afforded the opportunity to look into the matter and cannot comment on an issue it is unheard of. The Padmese Anti- Corruption Agency as well as the CSP have been afforded the necessary independence under the Constitution and the Respondents have no desire to curtail it[18].
Further, the requirement of ‘widespread or systematic’ was examined in the TheProsecutor v. Jean-Paul Akayesu[19]case, where the Trial Chamber declared that the concept of widespread could be defined as ‘massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims’, while ‘systematic’ could be defined as ‘thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources’. The attacks RightsShield speak of have not occurred in this manner and therefore the Appellants have not satisfied the burden of proving the Responde that the State of Padma have violated any obligations to its people.
In so far as corruption allegations go as directed against Padmese Govt officials,they are being investigated and the law has not been undermined nor will it be changed – the presumption of innocence until proven guilty holds. The healthcare system and education standards are indeed below par but the Government has and will continue to handle these issues as best as they can, given the tight economic constraints faced by Padma for the moment.
CONCLUSION:
In light of all the preceding arguments, it is this humble researcher’s opinion that due to supervening & overwhelming evidence on the position of the Appellants, I would pass judgement in their favour and grant the costs of the case to the Respondents.
REFERENCES/BIBLIOGRAPHY:
- INTERNATIONAL LAW: A South African Perspective (3 ed.) by John Dugard.
- INTERNATIONAL LAW (6th ed.) by Malcolm N. Shaw.
- last accessed on the 5th of February 2014.
- accessed on the 7th of February 2014.
[1] John Dugard: International Law - A South African Perspectivepp. 183
[2] A. Cassese “CRIMES AGAINST HUMANITY” in A. Cassese et al(eds) The International Criminal Court: A Commentary Vol I(2002) at 64.
[3]Rome Statute pp. 3-4
[4] John Dugard Supra
[5] John Dugard Supra
[6]Compromis para. 3
[7] Petition No. 8 of 2012
[8]Larry Everest: Oil, Power & Empire – Iraq and the U.S. Global Agenda
[9] Compromis para. 9
[10]Article 7 (1) (d) of Rome Statute
[11]Article 7 (1) (h) of Rome Statute
[12]Compromis para. 12
[13]Journal on – Labour Rights as Human Rights: The Not So Happy State of the Art
[14] a Huffington Post article by Akaash Maharaj
[15] David HarissInternational Law- A South African Perspectivepp. 183
[16]Para. 12 Compromis
[17]John Dugard Supra
[18]Article 249 of the Constitution of Padma
[19] [Sept. 2, 1998] I.C.T.R.