A/HRC/36/52
prosperity. The plundering of national revenues may thus ultimately lead to a violation of
the right of the people to freely dispose of their natural wealth and resources. 72
Non-return reinforces impunity and perpetuates corruption
58.
The non-repatriation of stolen assets sends the wrong message: that cases of grand
corruption will remain unpunished. Impunity must be avoided, particularly where national
resources and public funds have been systematically plundered, or such actions have been
tolerated, by those in the Government or in powerful positions. 73
59.
Although the concept of crimes against humanity has traditionally been linked to
grave or systematic violations of civil and political rights, there is no doubt that the
international community also has a great interest in putting an end to impunity for
economic and financial crimes, particularly those that can be qualified as grand corruption.
There is no doubt that criminal organizations emerging from kleptocratic regimes, i.e. those
whose only objective is the pillage of the State’s resources, cause direct damage to the State
and affect the fundamental rights and freedoms of the population. 74
60.
It is therefore not audacious to affirm that there is a connection between crimes
against humanity and the systematic pillage of the public resources of a country. Corruption
and abuse of power, when systematically orchestrated from the Government, lead to an
unjustified increase of the debt burden and curtail the socioeconomic progress and
sustainable development of the country.
61.
Economic crimes must be an integral part of transitional justice frameworks.
Amnesties, immunities or statutes of limitation should not serve to guarantee impunity to
those responsible for violations of economic, social and cultural rights which may amount
to crimes against humanity. Accountability for serious human rights violations and
economic crimes committed under past regimes must be prosecuted, as amnesty in cases of
grand corruption contributes to the weakening of processes of transition to democracy.
VIII. Main challenges inhibiting the return of illicit funds
62.
As noted earlier, attempts to return illicit funds expatriated mostly from developing
countries have too often been difficult or ineffective. The main challenges that inhibit the
return of these funds are described in the following paragraphs.
Lack of political will
63.
Repatriation involves the return of funds that have, over time, become imbricated in
the economies of the countries to which they have been transferred. Some of these
destination countries have adopted lax financial regulation in a deliberate attempt to
compete with offshore financial centres for illicit funds, and the negative discourse
surrounding such centres is intended to skew competition. 75 The withdrawal of these funds
thus would require the destination countries to take action against powerful domestic
72
73
74
75
In a complaint filed with the African Commission on Human and Peoples’ Rights by the Asociación
Pro Derechos Humanos de España against Equatorial Guinea, the organization considered that the
Government’s plundering of national oil revenues violated the right of the people of Equatorial
Guinea to freely dispose of their natural wealth protected by the African Charter on Human and
Peoples’ Rights. See www.opensocietyfoundations.org/sites/default/files/
a_communication_20071012.pdf.
For a definition of grand corruption, see E. Hava, “Strategies for preventing international impunity”,
Indonesian Journal of International and Comparative Law, vol. II, No. 3 (July 2015), p. 520.
See E. Monfrini and Y. Klein, “L’État requérant lésé par l’organisation criminalle: l’exemple des cas
Abacha et Duvalier”, in Etat de droit et confiscation international, Sandrine Giroud and Alvaro
Borghi, eds. (Edis, 2010), p. 135.
See, generally, Donato Masciandaro, ed., Global Financial Crime: Terrorism, Money-laundering and
Offshore Centres (London, Ashgate, 2004) and J.C. Sharman, The Money Laundry: Regulating
Criminal Finance in the Global Economy (Ithaca, Cornell University Press, 2011).
15
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