The American Academy of Arts and Sciences hosted a distinguished group of judges, attorneys, human rights specialists, and academics on March 20, 2019, to discuss whether an International Anti-Corruption Court (IACC) would contribute to global peace and security and, if so, how it might be established.
Robert Rotberg (President Emeritus of the World Peace Foundation, Founding Director of the Program on Intrastate Conflict at the Harvard Kennedy School, and guest editor of the Dædalus issue on “Anticorruption: How to Beat Back Political & Corporate Graft”) organized the meeting and led the conversation. He was joined by Judge Mark Wolf of the United States District Court for the District of Massachusetts and Justice Richard Goldstone, formerly of the Constitutional Court of South Africa and Chief Prosecutor at the initial United Nations International Criminal Tribunal for the former Yugoslavia.
The discussion expanded upon an essay written by Judge Wolf, published in the Dædalus issue on “Anticorruption,” that argued for the establishment of an International Anti-Corruption Court to investigate and prosecute cases of high-level corruption. Judge Wolf initially proposed the idea of such a court in a 2014 paper published by the Brookings Institution. Since then, the concept has been endorsed by Nobel Peace Prize winner and former Colombian President Juan Manuel Santos and current Colombian President Ivan Duque Marquez, as well as other former elected and appointed officials around the globe.
In his opening remarks, Professor Rotberg posed a series of questions to structure the discussion:
- Would the IACC contribute positively to efforts to fight corruption?
- What should its powers be?
- What would distinguish the IACC from the existing International Criminal Court (ICC)?
- How could the IACC be brought into existence?
Corruption and International Jurisprudence
Justice Goldstone noted that corruption is a systemic problem. Typically, corrupt politicians are abetting other compromised institutions, such as the judiciary, police, and prosecutorial offices, thereby making domestic prosecution ineffective. A supranational, neutral institution could serve as a venue of last resort to hold officials in these countries to account and to enforce internationally recognized protocols against corruption.
Using the International Criminal Court as an example, Justice Goldstone said that although its creation initially met with skepticism, the Rome Statute currently has 138 signatories and 123 parties. There have been two withdrawals – Burundi and the Philippines – primarily because their elected leaders fear ICC prosecution. This dynamic points to a potentially adverse selection problem in establishing the IACC, as the most corrupt countries would also be those least likely to participate.
Outside of its prosecutorial successes, the ICC has helped to introduce the lexicon of war crimes into discussions among political and military leaders, journalists, and whistleblowers by providing an impartial forum for the adjudication of such issues. In addition, those nations that joined would make laundered funds brought into their nations subject to freezing orders and appropriate transfers of those illicit funds.
Justice Goldstone suggested that the ICC should serve as inspiration to proponents of the IACC. He observed that the ICC drew many doubters and detractors before its creation. However, over the last nearly two decades, the ICC has attracted over 120 members and helped to put human rights at the forefront of both international and domestic agendas.
The participants agreed that even if a new IACC lacked P3 support, which was likely, its sheer existence would be important, signaling to the other 190 nations that world order took kleptocratic corruption seriously enough to create a new international jurisdictional body to bring grand corrupters to book. Fragile or weak states, where there is much routine grand corruption, would take notice. Changing the tone of global concerns about corruption would hence prove a major contribution, and reason enough for a new court.
Joseph S. Nye, University Distinguished Service Professor at Harvard University and former Dean of the Harvard Kennedy School, said that the Court could be successful even if only a small proportion of UN Member States were parties to it. He claimed that he would rather see twelve well-chosen countries join the IACC than all 190 nations.
As proposed, the IACC would have the authority to prosecute instances of grand corruption by high-level political leadership. Just as nations that are signatories to the ICC are subject to its jurisdiction, so too would signatories to the IACC allow the Court to serve as a venue of last resort for violations of the United Nations Convention Against Corruption (UNCAC). The Court would be empowered only to bring charges when a signatory to the UNCAC did not make a good faith effort to bring charges.
Participants discussed how cases would be brought to the Court for adjudication. One proposal was to allow individuals to submit complaints, empowering civil society groups in corrupt political environments to hold officials to account.
Attendees raised some concerns about the creation of an IACC. Perhaps the most important concern was a lack of buy-in from major global powers like Russia, China, and the United States. Other participants disagreed whether the absence of the United States would damage the IACC’s credibility; the absence of American influence may even assuage concerns about the Court advancing American interests instead of pursuing fair adjudication. However, the lack of American participation could be a missed opportunity at addressing “soft” corruption issues in U.S. politics, such as campaign finance and industry lobbying for greater deregulation. Some attendees argued that Russia, at least, may be interested in joining the IACC to lend credibility to its anti-corruption efforts. Furthermore, the IACC would likely have jurisdiction over common financial intermediaries such as Switzerland and the Cayman Islands, giving international prosecutors a channel to confiscate the gains of corrupt officials, regardless of whether they were citizens of an IACC signatory.
The topic of “soft” corruption elicited a few concerns from the participants. In many political cultures, traditions of reciprocity could run afoul of accepted legal norms governing corruption. In these instances, participants expressed apprehension that the IACC might disproportionately target offenses in the global South. Indeed, a similar criticism has been leveled against the ICC.
The participants discussed how the IACC could be brought into existence. Successfully establishing the IACC would require concerted effort to establish its legitimacy as an impartial and competent juridical body. Several suggestions emerged from the discussion.
Justice Goldstone emphasized that experienced, capable, and inventive prosecutors were essential if a new court was to succeed.
Another major theme was the importance of choosing partners carefully. Including representatives of corrupt regimes would diminish the credibility of any resulting court; participants proposed identifying allies in civil society to incorporate perspectives from countries in which corruption is a major concern. Building such ties would allow the iacc to identify strong cases for prosecution and weaken the ability of corrupt regimes to use the Court for bad-faith investigations of political opponents.
Transparency-focused nongovernmental organizations could advise the iacc in selecting its initial cases. The experience with the ICC is instructive: the Court’s first case, a prosecution of the Lord’s Resistance Army in Uganda, faced charges of hypocrisy because the Ugandan government, which worked with the ICC to bring the case, was alleged to have committed similar offenses. Participants at the workshop suggested that for its first cases, the IACC ought to focus on countries in which grand corruption by high-level leaders is rampant, prosecution efforts have not materialized, and a democratic civil society is eager to hold governments to account. Such countries include, inter alia, Ukraine, Paraguay, and the former Soviet republics in Central Asia.
With the active support of the Colombian government, momentum is growing to bring the International Anti-Corruption Court concept before international bodies, including the United Nations General Assembly. Indeed, the governments of Colombia, Peru, and Nigeria have formally endorsed a General Assembly session on corruption, tentatively scheduled for 2021. Though the process of drafting and ratifying international conventions can be slow, participants encouraged the development of regional or continental agreements to target corruption. Such agreements could serve as a proof of concept for an international body, while addressing ongoing issues of corruption as the details of the IACC are negotiated.
Participants identified several countries, such as Canada and South Africa, as likely to lend credibility to the IACC, and suggested that diplomats and attorneys from these countries be invited into the drafting process. The drafting of the Rome Statute of the International Criminal Court could provide useful lessons in structuring the international partnerships and diplomatic backchannels necessary to create a working draft for the consideration of the United Nations.
Justice Goldstone believes that the Crimes Against Humanity Convention would be a helpful starting point in terms of structure and substance.
Brendan Roach is the Morton L. Mandel Presidential Fellow at the American Academy of Arts and Sciences. Erik Mortensen is Clerk to the Honorable Mark Wolf, United States District Court for the District of Massachusetts.