We know corruption is bad, we argue about its consequences but we have been obsessed with its causes and the perpetrators. The main point of academic, activist and reformist attention view has been: whether it is the supply or the demand side of corruption; whether the offender is at home or abroad (or both); whether the method used was a bribe or a kickback; whether we are dealing with petty or grand corruption and how much is it and where does it happen; if and how we can ensure that not only individuals but also that legal entities be responsible for acts of corruption, and so on. Partly this focus on causes, parallels our focus on the perpetrators, which has been the focus of what is called the “anti-corruption movement” which includes civil society organizations, international institutions, donors, academics and professionals of different kinds among others. In fact this is the main focus of international legal instruments (United nations Convention Against Corruption and the OECD Anti-Bribery Convention) with some minor exceptions. And where are the victims? Fighting corruption is not an objective per se, and if corruption can’t be prevented or avoided, its consequences at least need to be repaired.
The idea that a corruption is a “victimless crime” is somehow a cliché. It sounds as if corruption was (only) a matter of morals, an individuals’ decision. If that was the case, there would be no reason to treat corruption as a crime. The confusion may well have “historical” grounds as corruption, when criminalized, is taken as a crime of conduct and therefore no actual material damage is required to be eligible for punishment. A different matter is that the damage caused by corruption is both material (human and financial loss for example) but also immaterial (lost in trust and credibility for example); it can also affect at the same time individuals (bidders who lost in a procurement process tainted by corruption), identifiable groups of people (children of a specific school) and also members of a community (like the citizens of a country).
The last financial crisis is yet another demonstration of how tangible trust is, and how equally important are collective rights in comparison to individual rights. Modern times and the ideas about good governance have also brought about an enhanced sense of the relevance and priority of public interest and of collective rights that have also changed the perspective; a view with the eyes of good governance treats nation-states as responsible (right-bearing and obligation-bearing) entities, as part of (and not despite) their sovereignty; good governance also sees societies, legal entities and individuals all as bearers of both rights and responsibilities, and the primacy of the public interest over the individual one. The rule of law in good governance times brings about a renewed sense of collective, where the individual also counts and the state has responsibilities.
But the focus of the international and national anti-corruption frameworks on the perpetrators may also have to do with the focus on the causes of corruption that has occupied many scholars and activists during the initial times of the awareness raising stage of the anti-corruption campaign at the beginning of the nineties. The concern was legitimate, if anything, to understand and to support preventive efforts, another concept that at that time was innovative.
Nowadays, as more clarity and awareness exists on the problems, costs and consequences associated with corruption, and as prosecution cases increase, the victims take a more salient role. Preventing corruption was a novel concept some years ago, and is a necessary attitude; but preventing corruption alone has not worked and will not work. Corruption is to some extent inevitable, and enforcement is also necessary. In this scheme of things, it is even more important to address the consequences of corruption and to take a closer look at its victims. It is possible and necessary to repair social damage originated in cases of corruption.
I have done research and looked into this issue in partnership with Transparency International-Americas and wrote a paper on social damage coming out of corruption cases and how it can be repaired. The paper, written with the research support of my colleagues Kodjo Attisso and Anja Roth, explores this concept and the opportunities and challenges faced when seeking reparation of social damage. For that purpose we look at the Alcatel Case in Costa Rica, one of the instances were this concept has been used under legal proceedings. You can download the paper here under this link:Repairing social damage out of corruption cases: opportunities and challenges as illustrated in the Alcatel Case in Costa Rica
I would be very interested in reading your comments and reactions to the paper.
 In this sense see Olaya, Juanita, Good Governance and International Investment Law: The Challenges of Lack of Transparency and Corruption (6 July 2010). Society of International Economic Law (SIEL), Second Biennial Global Conference, University of Barcelona, 8-10 July 2010. Available at SSRN: http://ssrn.com/abstract=1635437 (last accessed on 30 November 2010)