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REVIEW ARTICLE
MISDEMEANOR OF CORRUPTION WITHIN THE
SCOPE OF INTERNATIONAL LAW AND THE
LEGAL CONSEQUENCES
Ridwan Arifin1, Siti Faridah2, Muhammad Naefi3
1 Department of Criminal Law, Faculty of Law, Universitas Negeri
Semarang, Indonesia
2, 3 Faculty of Law, Universitas Negeri Semarang, Indonesia
sfaridah99@gmail.com
Submitted: April 8, 2019 Revised: August 24, 2019 Accepted: August 25, 2019
ABSTRACT
Corruption is a threat to stability, national and international security,
institutions, democracy, justice and endangering sustainable development and
law enforcement. In an international perspective, corruption is classified into
white-collar crime as a crime that occurs in government institutions. The paper
analyses the corruption in the international law perspective. The paper is
intended to examine more deep concerning to corruption in the global
perspective and international law, and how are consequences into domestic law.
The method used for analytical study of this paper by analyze some related
theories concerning to corruption in international law perspective. The paper
highlighted and underlined that corruption in the global context can be
prevented by international cooperation and collaboration in many forms, one of is
regional or bilateral agreement on combating corruption.
Keywords: Corruption; International Law; Global Context; Legal
Consequences
NATIONALLY ACCREDITED JOURNAL (SINTA 2)
Published by Faculty of Law, Universitas Negeri Semarang, Indonesia
Volume 4 Issue 2, November 2019 ISSN (Print) 2548-1584 ISSN (Online) 2548-1592
JILS (JOURNAL of INDONESIAN LEGAL STUDIES)
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mailto:sfaridah99@gmail.com
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TABLE OF CONTENTS
ABSTRACT ………………………………………………………………. 299
TABLE OF CONTENTS ………………………………...………….….. 300
INTRODUCTION ………………………………………………………. 300
CORRUPTION AND GLOBAL IMPACT ………………………..….. 302
I. THE CONCEPT OF CORRUPTION ……………….……….……. 302
II. THE DANGER OF CORRUPTION AND ITS LOSSES ………... 305
INTERNATIONAL LAW CONTEXT ON CORRUPTION CASES 308
I. AGREEMENT IN ADDRESSING CORRUPTION CASES …... 308
II. TROUBLESHOOTING AND SOLUTIONS OFFERED ………. 310
CONCLUSION ……………………………………………………..…… 311
REFERENCES …………………………………………………………… 311
Copyright © 2019 by Author(s)
This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International License. All writings published
in this journal are personal views of the authors and do not represent
the views of this journal and the author's affiliated institutions.
HOW TO CITE:
Arifin, R., Faridah, S., & Naefi, M. (2019). Misdemeanor of
Corruption within the Scope of International Law and the Legal
Consequences. JILS (Journal of Indonesian Legal Studies), 4(2), 299-314
https://doi.org/10.15294/jils.v4i2.29687
INTRODUCTION
International criminal law covers international aspects both in terms of
authority, administrative mechanisms and international criminal in the
meaning of the material. Universally, International Criminal Law is defined
as a transnational crime. In this case, a crime that is actually a national
crime that contains aspects of cross-border countries. Therefore, the
occurrence of the crime itself is actually within the national boundaries.
However, in some respects related to the interests of other countries are
mixed so that there appear to be two or more countries that have mutual
interests in this matter. In practice, of course, there are many factors that
lead to the related interests of more than one country in a crime. For
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example, criminal acts of corruption, where offenders and assets resulting
from corruption are stored in other countries so that they do not only cover
the borders of the country concerned but also enter the territory of other
countries (Rumokoy, 2011).
In the era of globalization, corruption has become a phenomenon of
a crime involving multilateral relations (Alkosar, 2009). Bassiouni in his
book in 1994 revealed that international criminal law is any action that can
be determined in multilateral conventions and followed by participating
countries. In this case, there are various kinds of international agreements
that serve to prevent and eradicate criminal acts. Some of these agreements
include Memorandum of Understanding (MoU), MLA, Extradition, and
Agreement on Transfer of Sentenced Persons, etc.
Then what needs to be questioned is why the law of corruption in
various countries looks like it is not functioning. In fact, according to Barda
Nawawi Arief, referring to criminal law policy, the main target of criminal
law is not only bad deeds from citizens but also actions (in authority or
power) involving the authorities or law enforcement officers (Arief, 2001).
Corruption in many cases is caused by an abuse of power, especially
in countries that have low-security stability (Arifin, 2016). In this case,
corruption is a universal problem faced by all countries in the world and is
a complicated problem that is difficult to eradicate. This is because the
problem of corruption is not only related to economic problems but also
related to political issues, power and law enforcement (Marsono, 2007). It
has been proven, corruption is related to the economic backwardness of a
country because its effects create distortions in economic activity, reduce
economic growth by inhibiting foreign investment in the form of foreign
direct investment (FDI), leakage of the state budget, lower tax revenues,
and rampant illegal levies.
Susanti (2014) told that corruption is seen as a paradigmatic
phenomenon or it can be said as a social phenomenon that is ingrained
because it is considered a national culture (Said, 2005). If equated, the
culture of corruption has entered widely into the realm of community
mentality and soul (Sugiharto, 2005). Corruption is a violation of social
rights and economic rights of the community, therefore, all criminal acts of
corruption can no longer be classified as ordinary crimes but rather as an
extraordinary crime that must be prioritized compared to other criminal
acts (Nurdjana, 2009). As extraordinary crimes, corruption requires
extraordinary enforcement and extraordinary measures.
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CORRUPTION AND GLOBAL IMPACT
I. THE CONCEPT OF CORRUPTION
The term corruption comes from Latin, namely "coruptio" or "coruptus", which
means damage or depravity (Prodjohamidjojo, 2009). Literally, corruption
is something rotten, evil and destructive (Suherry, 2017). Because
corruption involves moral aspects, rotten character, and circumstances,
positions in government agencies or apparatus, misuse of power in office
because of giving, economic and political factors, and placement of families
or groups into official positions under their authority and position
(Hartanti, 2012)
Poerwodarminto in the Indonesian dictionary concluded that
corruption was rotten, such as embezzlement of money, acceptance of
bribes, and so on. Meanwhile, Baharuddin Lopa quoted the opinion of
David M. Chalmers outlining the meaning of the term corruption in various
fields, namely concerning the problem of bribery, which is related to
manipulation in the economic field, and which concerns the field of public
interest (Hartanti, 2005). While Subekti interpreted it as a self-enriching
criminal act that directly endangers the country's finances and economy.
Corruption can simply be understood as 'the misuse of public power
for private gain' (Collier, 2002). In essence, corruption is a "social
pathology" that damages the structure of government and becomes a major
obstacle to the course of government and development (Abdurofiq, 2016).
Further corruption is contrary to moral, legal and religious ethics. In the
end, corruption is an agreement on the basis (Masdar, 2003). Because it is
done by someone who is attached, opportunities and power are misused for
real purposes (Ansori, 2015). "Crime" (Rumambi, 2014) based on the
definition of corruption as a public mandate for personal gain (Daniel
Kaufmann and Pedro C, 2002). As stated, Huntington also stated this
(Winarno, 2002). On the other hand, Lord Acton argued that "power tends
to be corrupt, absolute power is absolutely corrupt" (Rohim, 2005). This
adage as a basis gives more opportunities to make a transition on the basis
of this opportunity only from the basis of authority at the time (Suraji,
2008).
The problem of corruption is no longer seen as a problem of a nation
but also a problem of the international community (Levi, 2004). United
Nations Convention against Corruption (UNCAC), describes the problem
of corruption as a serious threat to stability, security of national and
international communities, weakening institutions, democratic values and
justice and endangering sustainable development and law enforcement.
Apart from that, being assessed through an international perspective
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corruption is seen as a crime classified into White Collar Crime and has a
consequence of complexity and becomes the attention of the international
community. The 8th UN Congress on "Prevention of Crime and Treatment
of Offenders" adopted the resolution "Corruption in Government (1990)"
which formulated the consequences of corruption, in the form of:
1. Corrupt public official activities:
a. Can destroy the potential effectiveness of all types of governmental
programs;
b. Hinder development; and
c. Victimize individuals and groups.
2. There is a close link between corruption and various forms of economic
crime, organized crime and illicit money laundering
The assumptions above cite systemic, organized, transnational and
multidimensional penalties for corruption in the sense that they correlate
with systems, juridical, sociological, cultural, economic aspects between
countries and so on. Judging from a juridical perspective, corruption is an
extraordinary crime proposed by Romli Atmasasmita (2003):
"By paying attention to the development of corruption, both in terms
of strength and quality, and after studying it in depth, it is excessive
that corruption in Indonesia is not an ordinary crime but an
extraordinary crime"
Alatar as a Professor of Sociology from Malaysia revealed that if
analogous to being cancer, our corruption has reached the third stage. At
this stage, a corruptor has become a victim of other corruptors. In the case
of cancer, on the third stage, the only way the patient has to be amputated,
if not, will pass to Rahmatullah. This explanation indirectly is in
accordance with the theory of differential associations. According to the
Differential Association Theory, it is explained that "a crime committed by
a person is the result of imitation of a crime committed in society and this
continues” (Mu’allifin, 2015). In this case, it can be seen that corruption is
like a social pathology that will continue so that it must be resolved
immediately with the applicable law in the current society.
According to Piers Beirne and James Messerschmidt in his book
Criminology (1995), in the crime study there were 9 types of corruption
there are:
1. Political bribery. Political bribery includes power in the legislature
as the legislative body. Politically the agency is controlled by interest
because the funds spent during the general election period are often
related to certain company activities.
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2. Political kickbacks. Political kickbacks are activities related to the
contract system of contract work between executing officials and
employers which gives an opportunity to bring in a lot of money for
the parties concerned.
3. Election fraud. Election fraud is corruption that is directly related to
election fraud.
4. Corrupt campaign practice. Corrupt campaign practice is the
practice of campaigns using state facilities.
5. Discretionary corruption. Discretionary corruption is corruption
done because there is freedom in determining policy.
6. Illegal corruption. Illegal corruption is corruption done by confusing
legal language or legal interpretation.
7. Ideological corruption. Ideological corruption is a combination of
discretionary corruption and illegal corruption that is done for
group purposes.
8. Political corruption. Political corruption is a diversion of power or
authority entrusted to him to gain personal or group benefits related
to power.
9. Mercenary corruption. Mercenary corruption is misusing power
solely for personal gain.
Corruption is no longer seen as a national problem, but a
transnational problem (Melani, 2005). In this case, corruption is one part
of a special criminal law. If described, corruption has certain specifications
that are different from general criminal law, such as procedural law
deviations and regulated material intended to suppress leakage and
irregularities to the country's finances and economy to a minimum. Because
this crime both directly and indirectly affects the quality of society's
welfare.
Laws and regulations in Indonesia that regulate corruption are now
better than before with the issuance of Law Number 28 of 1999 concerning
the Implementation of a Clean and Free State from KKN (Korupsi, Kolusi
dan Nepotisme), Law Number 31 of 1999 jo. Law Number. 20 of 2001
concerning Eradication of Corruption Crime, Law Number 30 of 2002
concerning the Corruption Eradication Commission, and finally the
ratification of the United Nations Convention Against Corruption, 2003
(United Nations Anti-Corruption Convention, 2003) with Law Number 7
of 2006.
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II. THE DANGER OF CORRUPTION AND ITS
LOSSES
One of the crucial issues that must get the attention of the current
government is corruption (Kristian, 2013). Corruption in society if it is
likened to a disease, this will be difficult to cure. Rais once revealed that if
it is true that prostitution is the "oldest profession" then corruption and
collusion can also be said to be "as old as the organization of power".
Corruption usually grows in a system that is rigid and full of obstacles and
comes from monopoly power in government (Pope, 2008). In line with this
statement, Klitgaard in 1998 revealed that corruption occurs because of the
practice of monopolistic power where there is an opportunity to carry out
large discretionary actions, but there is no adequate supervision through a
performance of accountability or a system of corruption. It means
Corruption = (Monopoly + Discretion) - Accountability.
Corruption is a threat to the principles of democracy, which
upholds transparency, accountability, and integrity, as well as the security
and stability of the Indonesian people (Ancok, 2011). The internal factor of
a person committing a criminal act of corruption is that it covers two
things, there is corruption by needs and corruption by greed. Where people
take action corrupt not because of the pressure of necessity but because of
the desire to live a luxurious life. External factors include an environment
that supports, for example, the community's permissive attitude towards
acts of corruption. Besides that, there is also an opportunity to commit
corruption because of inadequate supervision.
According to Fishman and Gatti (2002), there are 4 ways to measure
the level of corruption that occurs in a country (Nugroho, 2012):
1. International Country Risk Guide (ICRG)
The International Country Risk Guide (ICRG) version of the
Corruption Index of the Index between 0 (no corruption) to 1 (very
corrupt). High scores or indices indicate that individual government
officials request special and illegal payments for activities such as
export-import licenses, exchange controls, charging taxes,
protection policies and loans.
2. German Exporter Version Corruption Index or German Corruption
Exporter (GCI)
This index was developed by Neumann (1994) by calculating
the proportion of payment of export levies on total costs.
3. Corruption index version of the World Competitiveness Report
Corruption Index (WCRCI).
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This index measures improper practices in the provision of
public goods.
4. Corruption Perception Index (CPI).
This index is issued by the International Transparency
organization. The index is between 0 (very corrupt and 10 (very
clean). This index results from a survey of business operators in
several countries.
Indonesia Corruption Watch divides the scope and scope of
corruption into two major parts: Grand corruption and Pretty corruption.
The division is seen from the differences of actors or actors, the emergence
of State losses and the motives or objectives of corruption itself. In simple
terms, Grand corruption or high-level corruption refers to corrupt
practices by people who have access to power over the country's economic
resources. The motives are not because they want to improve their
standard of living, but are much higher, namely how to maintain power and
make a policy siding with and benefiting themselves or their groups. It is
different from Pretty corruption or small-scale corruption, which is the
practice of corruption perpetrated by low-level employees who have access
and a role in determining whether or not the public service is smooth. The
motive for this type of corruption is very simple, namely how to improve
the economic level of themselves and their families.
In the case of corruption, which includes transnationalities, it does
find many difficulties. Among them are differences in the legal system
adopted, bank secrecy, language, expected clarity of assistance and time,
the lack of capacity of the ability of law enforcement officers, incomplete
data sent to the requested state, the return of corrupted people and assets
(Simandjuntak, 2013). In this case, support from national and transnational
governments is needed, regarding the return of assets originating from
criminal acts of corruption (Koesoemo, 2017).
According to Robinson, corruption can have an impact on the
weakening of political institutions because it can damage the legitimacy
and accountability of the government. The crime of corruption involving
power is very difficult to prove, besides that the desire to eradicate this act
is clearly in conflict with the interests of power that are very likely to
involve the bureaucracy, as a result it can be predicted that this corruption
seems to be "beyond the law" and as a form of action that is "untouchable by
the law".
The pattern and / or relation to the occurrence of criminal acts of
corruption that occur in the body of government can be divided into three
categories, among others (Prasetyo, 2010):
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1. There is a form of abuse of power
Which is carried out by officials who have a certain authority
to act on the basis of legal legality that cooperates with other parties
by bribery, reducing specification standards or volume and marking
up funds. This type of abuse of authority is usually of a non-political
nature and is carried out by the level of officials who are not too
high-ranking.
2. Discretionary abuse of power
In this type of abuse of authority possessed by the Regional
Head because it has special authority, namely the legality to issue
certain policies such as Decrees of Governors, Regents / Mayors or in
the form of Regional Regulations and/or Regional Head Regulations
which usually make them cooperate with friends / groups and with
their families.
3. Ideological abuse of power
This is done by officials to pursue certain goals and interests of
the group or party. There can also be group support for certain
parties to occupy strategic positions in the bureaucracy / executive
institutions, where in the future they will receive compensation.
Corruption perpetrators are divided into two types, namely
corruption committed by corruptors who occupy high office positions or
known as the white collar. Corruptors who occupy low levels or positions
are known as blue-collar terms. Corruption is usually carried out jointly
between one public employee and another employee. This is because they
collaborate in an attempt to manipulate the system and/or to hide the
behavior and results of their corruption. The weakness of a system and the
lack of transparency give rise to wide opportunities for corruption (KPK,
2016).
The impact of corruption is so great and is a serious problem for the
welfare of society, must be a shared responsibility of all elements of the
nation without exception. Therefore, this is also the responsibility of the
people to join together in fighting corruption (Arifin, 2014). According to
Benveniste, corruption can only be eliminated if the supervisors truly carry
out all their duties and are unwilling to accept bribes. Such a situation can
only be realized if there are very adequate ideological and professional
commitments. Therefore, quoting from Ahmad Ali (2001) who said that as
long as the dirty broom is not cleaned, any talk of justice will be empty.
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INTERNATIONAL LAW CONTEXT ON
CORRUPTION CASES
I. AGREEMENT IN ADDRESSING CORRUPTION
CASES
The term internationalization of crime can be interpreted as the process of
determining the actions of certain acts as international crimes (Hiariej,
2019). According to Illias Bantekas and Susan Nash (2007), certain actions
which are then declared as international crimes can be through the
doctrine, practice or practice of international law. Sanyal (2005) explains
that there are five specific behavioral elements which if one element is
fulfilled, then this behavior can be qualified as an international crime, such
qualifications include:
1. Prohibited behavior has a significant effect on international
interests, especially peace and international security;
2. Prohibited behavior is a bad act and is considered to threaten the
values shared by the world community, including what has been
considered by history as behavior that touches humanity's
conscience. This is supported by many international opinions where
international bribery must be eradicated;
3. Behavior that is prohibited has transnational implications involving
or affecting more than one country in its planning, preparation or
actions, both through the diversity of citizenship of perpetrators of
crime or victims or equipment used beyond national borders;
4. Behavior that endangers the protection of international interests or
against internationally protected people; and
5. This behavior violates protected international interests but does not
reach the stage mentioned in the first and second points, but
because of its nature, this behavior can be prevented and suppressed
through international criminalization.
In the international context, the majority of countries agree to
collaborate in fighting corruption. International cooperation is
fundamental to prevent and eradicate corruption in an effective manner
(Nurmalawaty, 2006). Indonesia is one of the countries that has followed
the development of prevention of corruption by signing several
international conventions, such as the UNCAC (United Nation
Convention against Corruption) ratified by Law No.7 of 2006 and G-20
(Working Group on Anti-Corruption-WGAC).
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In the context of corruption crimes that refer to UNCAC, the
internationalization category of corruption crimes including treaties that
do not declare prohibited acts as an international crime, but require
participating countries to prosecute or extradite the perpetrators of these
acts based on national law as stipulated in Article 30 UNCAC.
In recent years, not a few public assets that have been successfully
corrupted have been rushed and stored in financial centers in develo ped
countries that are protected by the legal system in force in the country
(Frikasari, 2005). In this case, countries that feel disadvantaged cannot just
enter the territorial territories of other countries to arrest the perpetrators
of these crimes. This is because the international law applies the principle
of respecting the sovereignty of jurisdictions so that there must be prior
approval from that country. This is based on the general principle of
international law that each country has sovereignty that must be upheld.
The commitment of the international community to tackle
transnational crime through international cooperation can be seen from
international legal instruments that were born lately. For example, the
Palermo convention in 2000 which mentions several forms of international
cooperation that can be carried out by the international community,
namely: extradition agreements, mutual legal assistance in criminal
matters, Transfer of sentenced person. The UN has even issued a Treaty on
Extradition Model based on UN General Assembly Resolution Number.
45/117 dated December 14, 1990, which can be used as a model for
international cooperation and also regulated in the 2003 United Nations
Convention against Corruption which specifically regulates asset recovery
from corruption.
The emergence of this extradition agreement is certainly inseparable
from the implementation of the principle of international law as conveyed
by Hugo Grotius, namely the principle of a degree as pure. Which means
that the trial of the perpetrators of the crime can be carried out by the
country where the crime occurred or extradited to the requesting country
that has jurisdiction to try the perpetrator (Syarifudiin, 2016). In history,
extradition is recognized as a mechanism in preventing and combating
transnational crime or transnational crime.
The extradition treaty is a bilateral agreement that regulates the
process of arrest, identification, and the sending of perpetrators of crimes
in a jurisdiction of a country to another country that asks the perpetrator of
the crime to be tried at the place where the crime is committed. Because,
based on the principle of specialty that a criminal offender cannot be tried
before the person is extradited, unless there is an agreement. And if the
person requested has been submitted, the applicant country may only try
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or punish the person requested based on the crime for which extradition is
requested. Following is the legal basis for extradition:
1. National legislation
2. Extradition Agreement
3. International Conventions
4. International Student Order or Disguised Extradition
This is because the problem of corruption is now entering cross-
border boundaries, this is stated in the fourth paragraph of the preamble of
the UNCAC (Department of Foreign Affairs, 2008):
"Convince that corruption is no longer local, but it is a transnational
phenomenon of all societies and economies, making international
cooperation to prevent and control it essential"
II. TROUBLESHOOTING AND SOLUTIONS
OFFERED
Law enforcement is a supporting factor in legal development, while legal
development is a component that cannot be separated from national
development. Broadly speaking, law enforcement is the implementation of
the life of the nation and state in order to create order and legal certainty
oriented to justice. In a narrow sense, law enforcement can be interpreted
as a series of activities in a preventive, repressive and educative judicial
system (Santi, 2016).
Preventive actions are relatively easier, cheaper, and contain less risk
than repressive actions. Far-reaching preventive actions in crime
prevention efforts (Erdianto, 2014) through the "crime prevention
approach" method. Preventive action is understood as an effort to reduce
crime by preventing the crime (Amrani, 2014). While educational action
leads to an increase in the quality of understanding of the concept of anti-
corruption through the education system. Educational institutions are the
best and strategic place to instill and disseminate anti-corruption values by
mentoring mentally, spiritually or morally (Handayani, 2009).
Optimizing corruption eradication must be followed up with a
comprehensive strategy to achieve maximum results. This comprehensive
strategy covers various aspects, including (Waluyo, 2016):
a. Increased integrity and ethics of state administration;
b. Strengthening and accelerating bureaucratic reform;
c. Strengthening the anti-corruption culture of the community; and
d. A firm, consistent and integrated law enforcement.
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Besides that, efforts to eradicate corruption that have been carried out so
far still tend to lead to prosecution rather than prevention efforts that are
focused on increasing public awareness, especially state apparatus in anti-
corruption behavior. So, with this, it is hoped that a clean and free
government from corruption will be created. These efforts can be done
through upgrading or counseling, seminars, workshops, etc.
CONCLUSION
Transnational crime is a crime that contains cross-country aspects. This is
due to differences in interests in various regions. An example is a
corruption. Corruption arises because of the abuse of power. However,
there are also those who argue that corruption is a culture. In this case, the
problem of corruption has become a problem for the international because
it relates to national boundaries. There are two factors that driving
someone to commit corruption, there is corruption by needs and
corruption by greed. In addition, according to the theory put forward by
Klitgaard, corruption is due to the practice of monopolistic power, with
the opportunity to carry out considerable discretionary actions, but there is
no adequate supervision through the performance of the accountability
system. Besides that, corruption is a threat to the principles of democracy,
which upholds transparency, accountability, and integrity, as well as the
security and stability of the Indonesian nation and also has an impact on
weakening political institutions because it can destroy the legitimacy and
accountability of the government. In faced a serious problem like this,
according to Benveniste corruption can only be eliminated if the
supervisors truly carry out all their duties properly and are unwilling to
accept bribes. This can only be realized if there is a very strong ideological
and professional commitment. To support it all, a juridical (legal)
foundation is needed to regulate the society. One of them is through
international law and convention. International cooperation is a concrete
solution in preventing and eradicating corruption. One form of
implementation is that Indonesia plays a role in the UNCAC International
Convention (United Nation Convention against Corruption).
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