Summer 2022 Bulletin

Checking Kleptocracy: Considering the Potential Establishment of an International Anti-Corruption Court

By
Kathryn Moffat
The Peace Palace in The Hague
The Peace Palace in The Hague


By Kathryn Moffat, Senior Program Officer for Global Security and International Affairs at the Academy
 

On May 19–21, 2022, the American Academy convened an exploratory meeting to discuss the efficacy and potential establishment of an International Anti-Corruption Court (IACC). A distinguished group of experts from thirteen countries, including Afghanistan, Australia, Brazil, Canada, France, Mexico, South Africa, and Singapore, participated in the event. Chaired by Robert Rotberg (President Emeritus of the World Peace Foundation and Founding Director of Harvard Kennedy School’s Program on Intrastate Conflict), the meeting continued the Academy’s work on the IACC, which included a conference in March 2019 and a Dædalus issue on “Anticorruption: How to Beat Back Political & Corporate Graft” in Summer 2018.1

A background paper prepared by Judge Mark L. Wolf (Senior United States District Judge for the District of Massachusetts and Chair of Integrity Initiatives International), Professor Rotberg, and Justice Richard Goldstone (Retired Justice of the Constitutional Court of South Africa and former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda) provided discussion material for the exploratory meeting.

The event began with a keynote presentation from Judge Wolf, who shared how his experiences throughout his career, including as the U.S. attorney leading the Public Corruption Unit in the District of Massachusetts and as a federal judge, led him to develop the idea of a court that could investigate and prosecute grand corruption. Since 1990, Judge Wolf has been speaking around the world about his anticorruption work and the role of judges in combatting corruption. Observing that the impunity with which corrupt leaders violate human rights in much of the world is generally not due to a lack of laws, he questioned whether there might be a way to emulate some of the tools federal courts provide for combatting state-level corruption, for example, in Massachusetts, in an international environment to help facilitate enforcement of existing national laws.

Judge Wolf initially proposed the idea of an IACC in a paper issued by the Brookings Institution in 2014, which he elaborated on in a Dædalus essay published in 2018.2 As chair of Integrity Initiatives International, he has led an effort to advance the potential development of the court, including securing endorsements in May 2022 from more than forty former presidents and prime ministers. The meeting at the Academy offered both supporters and skeptics of the IACC a timely opportunity to discuss whether such a court could play an effective role in combatting corruption globally, and, if so, how it might be implemented.

Endnotes

Combatting Grand Corruption
 

Presenters on the first panel at the meeting explored ways to combat corruption using existing tools and discussed the implications for the potential establishment of an International Anti-Corruption Court. They noted that the new court would need to build on or outperform current models in order to be a valuable addition. The presenters stated that more research is needed to identify where advocacy can be most helpful and where it risks being counterproductive (similar to arguments about how human rights prosecutions may be counterproductive to peace and democratic stability even as they deter future violations). Later, panelists examined the role that existing institutions, such as domestic courts, international bodies like the International Commission against Impunity in Guatemala (CICIG), and the International Criminal Court (ICC), can play in combatting grand corruption. One major obstacle that the court would need to overcome is immunity of state officials. In addition, since there is no obvious way to compel states to cooperate, the issue of how the court could operate if it cannot rely on states and civil society to secure evidence requires careful consideration.

During the group discussion, the participants identified several factors relevant to the design of the potential court. One person observed that the tendency to store funds abroad means a potential IACC would have advantages that the ICC does not: if money is laundered through a state that is a party to the IACC, that state could give the IACC jurisdiction and freeze assets even if prosecutors in the kleptocrat’s home country are unable or unwilling to take action themselves. Additionally, the existence of an international body fighting corruption could help give domestic whistleblowers the courage to come forward.

Several participants expressed doubt about whether an International Anti-Corruption Court could increase the effectiveness of global anti-corruption efforts, noting that the inability to prosecute corruption cases domestically stems not only from failures in the court system but also from broken political systems that an international court cannot address directly. If domestic prosecutors or courts are corrupt, that may make it more difficult for the IACC to work with them. One issue put forward during the meeting was how would a court handle a case in which an international prosecutor might see an incident of grand corruption, but a local prosecutor might not consider that conduct in the same way.

After the conclusion of the first panel, Danilo Türk, former president of Slovenia, delivered a keynote address in which he called attention to the legal, policy, and ethical obstacles to the creation of the court. He identified three legal problems that require careful consideration: 1) How do we define grand corruption for the purposes of prosecutions? 2) How do we address the issue of complementarity, since even if an IACC were to be established most prosecutions would still occur at the national level? 3) How do we avoid frivolous or inappropriate prosecutions? He suggested that countries may be more willing to be involved if it is clear that corruption everywhere will be prosecuted with equal treatment, and that criticisms of being a neocolonial court, like those leveled at the ICC, can be avoided. He urged those advocating for the court to consider how to resolve these issues as early in the process of developing the court as possible. And while he questioned the prospects for new international cooperation in the current turbulent environment, he also warned against delaying as a tactic, noting that the idea for the ICC was initially raised in the 1940s and buried before the need for it eventually became clearer.

Core Principles for the Potential New Court
 

During the second panel of the meeting, the participants considered what form the court should take and discussed its proposed mandate and guiding principles. While the participants had a shared commitment to combatting corruption, there was less consensus on the right approach to achieve that goal. Some questioned whether the proposed court could indeed reach its five suggested goals: namely, constitute a fair and effective forum for the prosecution and punishment of kleptocrats and their collaborators; deter others tempted to emulate their example; and recover, repatriate, and repurpose ill-gotten gains for the victims of grand corruption. Those in favor of the court suggested ways to strengthen the proposal to improve the effectiveness of the court.
 

Bonnie J. Palifka (Tecnológico de Monterrey), Fen Osler Hampson (Carleton University; World Migration and Refugee Council), Gareth Evans (International Crisis Group; formerly, Foreign Minister of Australia), and Mathea Falco (Drug Strategies; formerly, U.S. Department of State) participate in a panel discussion.
Bonnie J. Palifka (Tecnológico de Monterrey), Fen Osler Hampson (Carleton University; World Migration and Refugee Council), Gareth Evans (International Crisis Group; formerly, Foreign Minister of Australia), and Mathea Falco (Drug Strategies; formerly, U.S. Department of State) participate in a panel discussion.

 

Some of the key ideas to emerge from the discussion include:

  • The jurisdiction of the court: The group debated whether an international convention against corruption with universal jurisdiction might be a more effective model than an IACC, or whether universal jurisdiction would keep states from agreeing to launch the court. Because corruption is transnational in nature, some argued that universal jurisdiction is unnecessary because many crimes would fall within the jurisdiction of states parties. The group also discussed whether universal jurisdiction might give states an incentive to prosecute corruption cases domestically.
  • Drafting the statute for an IACC: The participants considered whether recognizing domestic anti-corruption laws rather than defining them specifically in the statute would help promote agreement, and whether initial negotiations could proceed more effectively within or outside the UN system. A major topic of discussion was the idea that negotiations could begin with a group of twenty to thirty-five states, especially if they included key countries in the international financial system and representation from the Global South. Several participants noted that this would be an effective way to generate momentum and encourage more states to support the treaty. Others worried that it might fatally undermine the court’s legitimacy.
  • Dealing with stolen assets: The participants discussed whether it would be appropriate to allow whistleblowers to accept a portion of the frozen funds, whether all the funds should be returned to the treasuries of the nations in which they were misappropriated, or whether, in cases in which the state itself is highly corrupt, the funds should be used to benefit the population directly, such as through scholarships to students.
  • Obtaining evidence: One participant highlighted an important difference between the crimes covered by existing international courts and the proposed IACC. While there is sometimes no effort made to hide mass atrocities, or the nature of the crimes makes it impossible to do so, perpetrators of corruption typically go out of their way to cover up their actions. This means witness testimony alone would not be sufficient for prosecuting many crimes of this type. Instead, the court would need to secure financial documents as evidence and banks would have to cooperate with the court, which they are unlikely to do voluntarily. The court, therefore, would need their cooperation to be mandated.
  • Immunity: The immunity from prosecution accorded to heads of state in countries that are not party to the treaty would limit the court’s ability to prosecute the “biggest fish.” But since corruption usually involves many people, it may still be possible to prosecute other individuals within these corrupt governments if their actions, including money laundering, cross the borders of states parties. However, if the court is established with only twenty to twenty-five states parties, accused kleptocrats could travel to any number of states without risking arrest, making prosecutions more difficult.
  • Procedural law: Another participant raised the following questions: According to what procedural law would the court operate? Would there be international modes of liability? Or will the court apply laws of liability based on the legal system of the accused’s country or the state where the money was laundered?

How to Establish the Court
 

On the final day of the meeting, the participants considered the lessons that past international agreements may offer for the creation of the IACC. Drawing on his own involvement in developing the Anti-Personnel Land Mine Treaty, the ICC, and the International Commission on Intervention and State Sovereignty, including during his time as Canadian Foreign Minister, Lloyd Axworthy identified several important elements for success. These include considering how to make the case for why a treaty is needed; developing an effective outline for how agreement will be achieved; recruiting at least seven or eight key countries to act as champions; and then ensuring that the size of the group increases so that eventually specific, targeted, and clear anchor documents can be endorsed by a large assembly of countries.

Gareth Evans (President Emeritus of the International Crisis Group and former Foreign Minister of Australia) called for the development of a clear advocacy strategy for building political will, with peer countries mounting pressure on issues of moral and national interest as well as on financial, domestic, and political matters. Fen Hampson (Chancellor’s Professor at Carleton University and President of the World Migration & Refugee Council) proposed six requirements for a pre-negotiation strategy: the need for a strong evidentiary basis; a compelling moral narrative to help make the case; a core coalition to kickstart the process; leadership who can convey the moral urgency of the issue; converts to the cause; and an innovative negotiating forum to facilitate progress.

A presentation by Oona Hathaway (Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School) prompted a wider discussion about involving the private sector. Professor Hathaway suggested that a proposal for a court that might focus on aiding and abetting corruption – not just on prosecuting corrupt officials – could prompt resistance from corporations that might pressure states not to accept the court because of the corporations’ own fear of liability. Many participants noted that, although some corporations might fear liability, honest multinationals – particularly those in countries like the United States and Canada that criminalize those who pay bribes – are disadvantaged because they do not want to pay bribes and they are also the most vulnerable to prosecution if they do so. Leveling the playing field internationally might help garner their support.

The insights shared by the participants in this exploratory meeting – including about a number of legal, procedural, and diplomatic questions that would need to be resolved in order to create a strong foundation for the court if it were to go forward – will be incorporated into a revised version of the background paper that guided the meeting and will help inform wider discussions on the potential court, including those hosted by Integrity Initiatives International.
 

The Academy will publish a revised version of the background paper prepared by Judge Wolf, Professor Rotberg, and Justice Goldstone this fall. The paper will be accessible via the Academy’s website and in print.

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