SHORT MESSAGE:

The fight against corruption is very much a part of the fight against organized crime.

With regard to corruption, ignore Palermo and implement Merida.

I will provide my “Top 8” priorities for implementing Merida.

LONGER VERSION:

During TOC negotiations, negotiators acknowledged how corruption can facilitate organized crime and they knew they needed to deal with it in the Palermo text.

Another important point: they also recognized how corruption, even on a very local and domestic level, can feed TRANSNATIONAL organized crime. They recognized that addressing corruption as a part of the fight against transnational organized crime would require addressing domestic corruption problems that do not necessarily have any transnational manifestations and that do not necessarily have a direct link to organized crime groups.

e.g. – the corrupt police officer in New York who looks the other way as Italian organized crime members fill a Brooklyn warehouse with illegal contraband smuggled from Eastern Europe

During the course of the Palermo convention negotiations, people realized that devising a regime to address corruption in a holistic way could take up an entire convention in itself. UNODC began talking about a separate convention against corruption.

So when Palermo was finalized, they knew we were likely going to begin negotiations for a separate corruption convention.

As such, Palermo provisions only touch upon corruption lightly: it has four basic pronouncements:

ARTICLE 8:

(1) requires states to criminalize passive and active bribery of domestic public officials
(2) tells states to consider criminalizing active bribery of foreign public officials
(3) tells states to criminalize acting as an accomplice to any of these crimes

ARTICLE 9:

(4) tells states very generally to adopt other effective “measures” to prmote integrity and address corruption

All this and much more is contained within the Merida convention…

In fact, legislative guide of Palermo, developed by UNODC to assist states as they implement the Palermo convention, says: (QUOTE)

Okay: so now we know to look at the Merida convention: but what aspects of the Merida convention may be particularly useful to the OAS as they draw up a list of suggested actions for addressing organized crime.

Will quickly give you my “Top 8” list of areas for action:

BEFORE MY LIST, AS GENERAL BACKGROOUND: Merida addresses the fight against corruption from four main perspectives:

(1) criminalizing corrupt conduct (CHAPTER 3),
(2) facilitating international cooperation through MLA and extradition (CHAPTER 4),
(3) facilitating international cooperation in the recovery of illicitly acquired assets moved abroad (CHAPTER 5), and
(4) actions to prevent corruption from happening in the first place (CHAPTER 2).


CRIMINALIZING CONDUCT:

(1) Ensure that our laws provide for the criminalization of ALL CRIMES THAT ARE MANDATORY TO CRIMINALIZE PURSUANT TO MERIDA

a. Active and passive bribery of domestic officials (ARTICLE 15)
b. Active bribery of foreign public officials (ARTICLE 16)
c. Money laundering (ARTICLE 23)
d. Embezzlement, misappropriation or diversion of property by a public official (ARTICLE 17)
e. Obstruction of justice (ARTICLE 25)
f. Being an accomplice to any of these crimes (ARTICLE 27)

(2) Ensure that legal persons (corporations, etc.) can be liable for any of these “mandatory” corruption crimes
a. This is required by both Merida (ARTICLE 26) and Palermo

FACILITATING INTERNATIONAL COOPERATION:

(3) Ensure that we have appropriate vehicles for facilitating mutual legal assistance and extradition
a. Conventions can be vehicles for MLA – and US would recommend wider adoption and use of the OAS MLAT

FACILITATING ASSET RECOVERY:

(4) Ensure that we have mechanisms for seizing and forfeiting proceeds of crime – and US would recommend wider adoption and use of civil forfeiture proceedings.

(5) Ensure that we have the mechanisms and ability to detect and prevent movement of corrupt proceeds through our financial systems.
a. ARTICLE 52 provides a good guide of mandatory measures, including enhanced scrutiny, issuance of advisories relating to individuals or organizations that may be involved in corruption, and preventing the establishment of banks with “no physical presence and that are not affiliated with a regulated financial group.”

PREVENTION:

(6) Mechanisms to promote better procurement processes (ARTICLE 9)

(7) Mechanisms to promote better management of public finances (ARTICLE 9)

(8) Mechanisms to promote better accounting by the private sector (ARTICLE 12)