Although 187 countries have ratified the UN Convention Against Corruption (UNCAC), domestic enforcement is still severely lacking in many jurisdictions. Wolf says for too long the international legal framework has failed to address the demand side of transnational bribery and corruption, particularly when it involves public officials. ‘You can only prosecute organisations and individuals that bribe foreign officials,’ he says. ‘You can't prosecute those foreign officials themselves. There’s a gaping hole in the system and there's nothing to hold leaders who extort bribes accountable.’
This conundrum is what spurred Wolf to first propose the idea of an international anti-corruption court (IACC) in 2012. Five years ago, Wolf and Goldstone set up Integrity Initiatives International (III). Through it they have worked to strengthen national anti-corruption efforts worldwide, including helping establish an anti-corruption court in Ukraine.
There’s a gaping hole in the system and there's nothing to hold leaders who extort bribes accountable
The Honorable Mark Wolf
Senior Judge, US District Court for the District of Massachusetts
Wolf currently serves as a senior judge for the US District Court for the District of Massachusetts and has seen the damage caused by kleptocrats in the US alone. He started working for the US Attorney General’s office in 1974 at the tail end of the Nixon administration, just months before the president resigned over the Watergate scandal. He also led the Public Corruption Unit in Boston from 1981-85 that secured 44 consecutive convictions, including against corrupt officials close to Boston Mayor Kevin White.
In 2019, Colombia called on the UN to establish the IACC. This was shortly followed by Peru and international support has grown exponentially ever since. By June 2021, over 100 Nobel laureates, former presidents, high court justices, business leaders, and other prominent leaders from over 40 countries signed a declaration supporting the Court’s creation.
‘The time for a dedicated international institution on the same lines as the International Criminal Court (ICC) has come,’ says IBA President Sternford Moyo, who is one of the signatories. ‘The adverse effects of corruption are, in many cases, comparable to the effects of crimes against humanity. Given the frequent cross-border transfer of looted resources to tax havens and jurisdictions which uphold secrecy in connection with such resources, and the fact that international aid to poor countries would be unnecessary but for corruption, it has assumed strong international dimensions and requires international collaboration and cooperation to fight and combat it effectively.’
Like the ICC, the proposed IACC would act under the principle of complementarity, only acting as a court of last resort. It’s also envisaged that the Court would have the ability to freeze laundered funds and keep them until they can be repatriated.
Both Goldstone and Wolf agree that having the support of the world’s major financial centres will be critical to its success. ‘The main argument against the Court is not that it's illogical, but that it's impossible because countries ruled by kleptocrats won't join it,’ says Wolf. ‘But we're convinced that it could be created and be effective initially by as few as 25 representative countries from around the world, particularly if they include financial centres like Switzerland and Singapore and some countries that are attractive destinations for illicit funds.’
Nicola Bonucci is the former Director for Legal Affairs for the Organisation for Economic Cooperation and Development, a member of the IBA Anti-Corruption Committee Advisory Board and a litigation partner at Paul Hastings in Paris. He says the prospect of an IAAC is ‘undoubtedly attractive’. However, he cautions against considering it a panacea to resolving the broader problem of enforcement and implementation of anti-corruption legislation and treaties like UNCAC. He suggests a regional approach could be more feasible: ‘There are several regional Anti-Corruption Conventions – in the Americas, Africa, Europe and the Middle East, but a notable exception Asia – which provide a robust legal framework,’ he says. ‘It may certainly be easier to reach consensus at the level of a region than at a universal level.’
Claudia Escobar, a former magistrate of the Court of Appeals of Guatemala and III board member, is a strong advocate for regional institutions. However, she believes a supranational court may be the only solution for some jurisdictions like her native Guatemala, where she has experienced grand corruption first-hand after exposing illegal interference in the country’s judiciary by high-ranking political officials.
She points to the UN-backed International Commission against Impunity in Guatemala (CICIG), which ramped up anti-corruption efforts in the country in 2006 by investigating and prosecuting serious crimes and strengthening the rule of law in the country. However, since CICIG’s dismantlement in 2019, Escobar fears that Guatemala and other countries in Central America will find it increasingly difficult to fight impunity and corruption with national institutions alone. ‘CICIG was a good example of what can be done in a country that doesn't have the tools to fight corruption by itself,’ she says. ‘That’s why I really back the creation of an international anti-corruption court. I think that there are places where there is no other choice because the institution itself is not going to be able to do it.’
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