We’re happy to cross-post this article from Robert Cryer on football and international justice (two subjects close to my heart!), originally posted on the Oxford University Press blog. Robert is professor of International and Criminal Law at the University of Birmingham. He is author of, amongst other things, The Tokyo International Military Tribunal: A Reappraisal (with Neil Boister). He was a co-editor of The Oxford Companion to International Criminal Justice (Lead editor Antonio Cassese). He is also co-editor of the Journal of Conflict and Security Law, and sits on the editorial board of the Journal of International Criminal Justice.
The factual backdrop to this affair is well-known. FIFA, world football’s governing body has, for a number of years, been the subject of allegations of corruption. Then, after a series of dawn raids on 27 May 2015, seven FIFA officials, of various nationalities, the most famous being Jack Warner, the Trinidadian former vice president of FIFA, were arrested in a luxury hotel in Zurich where they were staying prior to the FIFA Congress. This was pursuant to an indictment that accused them, alongside five corporate officials, of using their positions within FIFA to engage in schemes involving the solicitation, offer, acceptance, payment, and receipt of undisclosed and illegal payments, bribes, and kickbacks. The defendants and their co-conspirators were also accused of corrupting the enterprise by engaging in various criminal activities, including fraud, bribery, and money laundering, in pursuit of personal and commercial gain.
The allegations relate in particular to the bidding process for the right to hold the World Cup. To the surprise of some, FIFA’s president, Sepp Blatter, was not included in the indictment, although further investigations, both in the United States and Switzerland, are ongoing, and calls for him to step down have been made, including by the British Prime Minister David Cameron.
Corruption, and its fellow traveller money laundering, tends to cross borders, and with an entity such as FIFA and an event such as the World Cup, it would be difficult to imagine that there could not be an international element to the case. But the indictment in one country of nationals of various countries, and arrests in another pursuant to an extradition request, have given rise to different conceptions of criminal justice: one internationalist, the other nationalist.
The former can be seen on the part of US officials, who, when announcing the arrests and indictments, thanked the government of Switzerland and other unnamed States for their ‘outstanding assistance’ in the investigation. Given that the conduct related in large part to money laundering into and out of the United States and to bribes that went through US banks and deposited abroad, it is no surprise that the cooperation of other States was required. What might be surprising though is that mutual legal assistance, at best a sclerotic system, seems to have worked in this case, although it was helped by guilty pleas by four FIFA officials including the ex-US member of the FIFA executive committee. It is notable that the rhetoric of the United States was very much of the internationalisation of the crimes and the effect they had in developing countries. As IRS Chief of Investigation, Richard Weber (clearly no stranger to a bon mot) described the charges, they relate to a ‘World Cup of corruption’.
On the nationalist side, however, Russian President Vladimir Putin, perhaps not the most objective of observers, given that Russia obtained the 2018 World Cup from FIFA, criticised the indictments and arrest as:
“It looks very strange…. They are accused of corruption – who is? International officials.…it’s got nothing to do with the USA. Those officials are not US citizens. If something happened it was not in the US and it’s nothing to do with them…. It’s another clear attempt by the USA to spread its jurisdiction to other states.”
Leaving aside the fact that two of the defendants were US nationals, and one has been accused in the indictment of obtaining that nationality fraudulently, Putin’s comments can easily be refuted. In spite of the transnational nature of the crimes alleged and the international co-operation that they engendered, in fact the vast majority of charges relate to conduct occurring at one level within the United States, most particularly, New York and Florida, in that the money went through banks there, or related to conduct there. Owing to the principle of ubiquity of crime–i.e. that if any part of a crime occurs in the territory of a State, they have jurisdiction over it–the United States quite clearly has territorial jurisdiction in those cases.
It might therefore be thought that this simply makes it a national US matter. However, the picture is more complex. What this affair shows is the intermingled nature of even domestic crimes with territorial links, with international cooperation and activity. Frequently owing to their nature, such crimes require international cooperation and relate to conduct that crosses borders, which also leads to multiple investigations in different States, as the Swiss investigation shows.
What Putin’s comments also show, however, are the frequent charges of the politicisation of international criminal justice, understood in its broad sense. Putin has alleged that the timing of the arrests, mere days before the FIFA presidential election was ‘a clear attempt not to allow Mr Blatter to be re-elected as president of FIFA’. It is true that the timing could be seen as a remarkable political coincidence, the United States being no friend of Mr Blatter. However, as is often the case when dealing with large scale conspiracies and racketeering, it was useful to have as many of the alleged conspirators together at one time (in one country) to make for a maximally effective arrest operation, and to prevent collusion between them.
This is clearly one step in a very long journey in relation to the FIFA corruption allegations, but one that shows us a great deal about how in our interconnected world, it is no longer enough to think solely in terms of borders.