The Progressing Proposal for An International Anti-Corruption Court

II. The Need for an International Anti-Corruption Court

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Mark L. Wolf, Richard J. Goldstone, and Robert I. Rotberg

A. The Consequences of Grand Corruption

Grand corruption has a long and enduring history in many countries. It is not a victimless crime. Rather, it has devastating human consequences. In developing countries, over ten times more money is lost to illicit financial flows than is received in foreign aid.4 In addition, as then-UN High Commissioner for Human Rights Navi Pillay explained, “Corruption kills. The money stolen through corruption every year is enough to feed the world’s hungry 80 times over. . . . Corruption denies them their right to food and, in some cases, their right to life.”5

The COVID-19 pandemic makes this even more clear. It has, predictably, proven to be a bonanza for kleptocrats because trillions of dollars have been disbursed without even the usual, frequently ineffective safeguards.6 Among the many arrested or searched but not convicted in COVID-19–related corruption investigations are the former Bolivian health minister, the former president of Ecuador, and the prime minister of Bosnia’s Muslim-Croat Federation.7

Grand corruption also contributes to climate change and is a major impediment to ameliorating it. For example, kleptocrats profit greatly from the illicit forestry trade, which is estimated to be worth $51–$152 billion annually.8 Unless something significant is done to deter grand corruption, a large percentage of the billions in aid intended to diminish climate change will be misappropriated by kleptocrats and their collaborators. The primary recipients of government climate-related development aid are countries that are perceived as among the most corrupt in the world, including Bangladesh, Uganda, Mexico, and Indonesia.9 In addition, the risk of corruption will discourage private investment from being made in the countries that need it most. This will particularly injure the poor and powerless, who are disproportionately harmed by climate change and increasingly forced to migrate because of it.10

Moreover, the legions of refugees overwhelming countries in the Americas and Europe are fleeing failed states ruled by kleptocrats, including Syria, Venezuela, and South Sudan.11 Any effort to alleviate the world’s refugee crises must, therefore, address a fundamental cause of forced migration: grand corruption.

In addition, citizens’ indignation at grand corruption has destabilized many countries and, as a result, created grave dangers for international peace and security. This is epitomized by Ukraine, where the flagrant corruption of President Victor Yanukovych was a major cause of the 2014 Maidan protests that drove him out of office and to Russia, the ensuing Russian invasion of Crimea, and its continuing dangerous aftermath.12

Grand corruption is also antithetical to democracy. Kleptocrats regularly repress independent journalists and civil society organizations with the potential to expose their criminal conduct.13 The individuals, corporations, and criminal syndicates that bribe kleptocrats also illegally finance campaigns in elections that are neither free nor fair.

The Pandora Papers, published in 2021 by the International Consortium of Investigative Journalists (ICIJ), provide additional compelling evidence that corrupt leaders throughout the world, aided and abetted by domestic and international accomplices, are enriching themselves at the expense of the health and welfare of their often-desperate citizens and are secretly using the international banking system to move their substantial ill-gotten gains to foreign countries. The Pandora Papers investigation exposed the secret finances and lavish lifestyles of more than 330 politicians, including thirty-five current and former Heads of State.14 The Pandora Papers follow the ICIJ’s Panama and Paradise Papers, which provided similar evidence of grand corruption but resulted in the conviction of only one politician, the former prime minister of Pakistan.15

Because grand corruption pollutes the international financial system and has other severe international consequences, it is not just a domestic problem for individual countries to address alone. Rather, it is a global problem that requires a global solution.


B. Grand Corruption Does Not Exist Because of a Lack of Anti-Corruption Laws

Almost all of the 181 states that are party to the UNCAC have enacted the required statutes criminalizing bribery, money laundering, and misappropriation of national resources.16 The Vienna Convention on the Law of Treaties requires that each country make a good-faith effort to enforce those laws.17

However, some states that are party to the UNCAC are governed by kleptocrats who enjoy impunity in the countries they rule because they control the police, prosecutors, and courts, which are often also corrupt themselves. Those kleptocrats will not permit honest, effective investigation of themselves or their criminal collaborators. In other countries, leaders or other officials are willing to try to hold kleptocrats accountable but do not have the capacity to conduct complex criminal investigations or try complex cases, particularly against wealthy, powerful people.

Statutes such as the U.S. Foreign Corrupt Practices Act (FCPA) and its forty-three counterparts enacted in countries that are party to the Organization for Economic Cooperation and Development (OECD) Convention against Bribery are inadequate to erode the impunity kleptocrats enjoy. Those statutes permit the prosecution of individuals and organizations that pay bribes but not of the public officials who demand or accept them. In addition, except in the United States and, recently, the United Kingdom, Switzerland, and Israel, those statutes are rarely, if ever, enforced.18 A fundamental premise of criminal law is that the prospect of punishment will deter crime. Research has validated this premise, including with regard to violations of human rights.19 The absence of risk of punishment, particularly imprisonment, contributes greatly to the pervasiveness and persistence of grand corruption.