II. The Need for an International Anti-Corruption CourtBack to table of contents
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.
- 4According to data collected and analyzed by Global Financial Integrity for the period from 2004 to 2013, illicit financial outflows from developing countries were, on average, roughly 11.1 times the amount of official development assistance received each year. Dev Kar and Joseph Spanjers, Illicit Financial Flows from Developing Countries: 2004–2013 (Washington, D.C.: Global Financial Integrity, December 2015).
- 5“Opening Statement by Navi Pillay, High Commissioner for Human Rights: Panel on ‘The Negative Impact of Corruption on Human Rights,’” UN Human Rights Office of the High Commissioner, March 13, 2013.
- 6Sarah Steingrüber, Monica Kirya, David Jackson, and Saul Mullard, Corruption in the Time of COVID-19: A Double-Threat for Low Income Countries, U4 Brief 2020:6 (Bergen: U4 Anti-Corruption Resource Centre, 2020); and Joshua Goodman, “Spread of Coronavirus Fuels Corruption in Latin America,” AP News, May 27, 2020.
- 7Daniel Ramos, “Bolivia Investigates Health Officials over Ventilator Deal after Public Outcry,” Reuters, May 20, 2020; Natalie Kitroeff and Mitra Taj, “Latin America’s Virus Villains: Corrupt Officials Collude with Price Gougers for Body Bags and Flimsy Masks,” The New York Times, June 20, 2020; and “Bosniak-Croat Federation PM Detained over Deal to Buy Respirators from China,” Radio Free Europe/Radio Liberty, May 30, 2020. An exception is the conviction in Indonesia, in August 2021, of the minister for social affairs for receiving $2.25 million in bribes in relation to the procurement and distribution of COVID-19 social assistance packages. See Agustinus Beo Da Costa, “Ex-Indonesian Minister Jailed for 12 Years in COVID-19 Graft Scandal,” Reuters, August 23, 2021.
- 8Pervaze A. Sheikh and Kezee Procita, “International Illegal Logging: Background and Issues,” Congressional Research Service, Report IF11114, February 26, 2019.
- 9Nest, Mullard, and Wathne, Corruption and Climate Finance.
- 10Joe McCarthy, “Why Climate Change and Poverty Are Inextricably Linked,” Global Citizen, February 19, 2020.
- 11UN High Commissioner for Refugees (UNHCR), Global Trends: Forced Displacement in 2020 (Copenhagen: UNHCR Global Data Service, June 18, 2021), 3, 18.
- 12“Understanding Ukraine’s Euromaidan Protests,” Open Society Foundations, updated May 2019.
- 13Cathal Gilbert, “The Connection between Corruption and Shrinking Civic Space,” UNCAC Coalition, July 21, 2015.
- 14Fergus Shiel, “About the Pandora Papers,” ICIJ, October 3, 2021.
- 15Fergus Shiel, “Former Pakistan Prime Minister Sentenced to Imprisonment Again on Corruption Charges,” ICIJ, December 26, 2018.
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.
- 16State of Implementation of the United Nations Convention against Corruption: Criminalization, Law Enforcement, and International Cooperation, 2nd ed. (New York: UN Office on Drugs and Crimes, 2017), chap. 1; and Cecily Rose, “The Limitations of the United Nations Convention Against Corruption,” in Cecily Rose, International Anti-Corruption Norms: Their Creation and Influence on Domestic Legal Systems (New York: Oxford University Press, 2015).
- 17Vienna Convention on the Law of Treaties (1969), Article 26.
- 18Gillian Dell, Exporting Corruption: Progress Report 2020: Assessing Enforcement of the OECD Anti-Bribery Convention (Berlin: Transparency International, October 2020), 12.
- 19Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Washington, D.C.: The Sentencing Project, November 2010); Andrew von Hirsch, Anthony E. Bottoms, Elizabeth Burney, and P.O. Wikstrom, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Portland, Ore.: Hart Publishing, 1999); and Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?” International Organization 70 (3) (2016): 443.