The case for an international anti-corruption court

Michel Levien González

Streiner, Puebla

michel@streiner.mx

Justice Richard Goldstone

Integrity Initiatives International, Sandton

Honorary Life Member of IBA Council and Association

Ian Lynch

Integrity Initiatives International, Sandton

ian.lynch@integrityinitiatives.org

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‘The crimes of Vladimir Putin are so heinous, outrageous and extensive that we should now consider how to bring him to justice not only for his crimes of aggression against Ukraine and his continuing reign of terror, but for his three decades of deceit and corruption […] Every day Putin continues to hold power, the case for an International Anti-Corruption Court grows.’^[1]

Gordon Brown, Former Prime Minister, UK

Tragically, we see a vivid example of the threats posed by Russian kleptocracy on full display in Ukraine. Sadly, Ukraine is only one place among many where kleptocrats have wrought devastation in the wake of their egregious pursuit of power and decadence.

Grand corruption – the abuse of public office for private gain by a nation’s leaders (kleptocrats) – is a major barrier to meeting the United Nation’s Sustainable Development Goals, responding effectively to pandemics, fighting climate change, creating a level playing field for ethical international businesses, promoting democracy and human rights, establishing international peace and security, and securing a more just, rules-based global order.^[2]

Grand corruption does not endure due to a lack of anti-corruption laws and instruments. In addition to regional conventions and treaties, and to extant domestic laws, 189 parties – nation states, regional bodies and other subjects of international public law – have subscribed to the UN Convention against Corruption (UNCAC), which requires criminalising forms of corruption such as bribery, embezzlement and money laundering. Further, UNCAC’s review mechanism ensures that each party makes a continued, good faith effort to create and enforce such laws. Yet, corrupt leaders and senior officials continue to enjoy impunity in their own countries because – in meaningful measure – they control police, prosecutors and courts.

Domestic laws such as the United States Foreign Corrupt Practices Act (FCPA), and its 43 counterparts enacted in countries that are party to the Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention,^[3] have not been adequate on their own to erode the impunity kleptocrats enjoy. Those statutes permit the prosecution of individuals and organisations that pay bribes, but not of the public officials who demand or accept them. It is a fundamental premise of criminal law that the prospect of punishment will deter crime and prosecutions against public officials under these laws have been notably lacking. The absence of risk of punishment – particularly imprisonment – contributes greatly to the pervasiveness and persistence of grand corruption.

Today, no supranational body can sanction kleptocrats who plunder nations. An international anti-corruption court (IACC) would have the power to do what these nations have been unwilling or unable to do; effectively bring to justice those kleptocrats and their collaborators, make examples out of them and recover grafted funds for their rightful owners.

Until recently, the most frequent criticism of the IACC has been, no matter how compelling the concept, it is an ideal that is impossible to achieve.^[4] However, the rapidly growing support for the IACC is refuting, and muting, this contention.

In June 2021, Integrity Initiatives International, the catalyst for the creation of the IACC, released a Declaration in Support of the Creation of an International Anti-Corruption Court signed by more than 125 world leaders, including six former heads of state and two Nobel laureates, from 40 countries representing every continent. The Declaration has since been signed by more than 250 world leaders, including a total of 39 heads of state and 32 Nobel laureates, from more than 70 countries.

In 2016, President Juan Manuel Santos made Colombia the first country to endorse the IACC. His successor Iván Duque Márquez reaffirmed and continued this commitment.^[5]

In September 2021, both the Canadian Liberal and Conservative parties called for establishing the IACC.^[6] In December 2021, Canada’s Foreign Minister was instructed to ‘[w]ork with international partners to help establish an International Anti-Corruption Court.’^[7] ​​In March 2022, the Dutch government made a similar commitment to work ‘together with like-minded partners to strengthen the international legal order by establishing an [IACC].’^[8] In late 2022, Canada, Ecuador, the Netherlands, and other partners will hold a ministerial conference on combatting corruption, including how an IACC should be shaped and to build international support for it.

First proposed in 2014, the IACC has been, and remains, an evolving concept and there are details concerning the Court that must be further developed. The fundamental features of the IACC as currently conceived include the following.

As a court of last resort operating on the principle of complementarity, the IACC would only investigate or prosecute if a member state were unwilling or unable to prosecute itself. The IACC would have the authority to prosecute a head of state or government, anyone appointed by a head of state or government, and anyone who knowingly and intentionally assists one or more of them in the commission of a crime within the IACC’s jurisdiction. Thus, the IACC would, for example, have the authority to prosecute private parties –including legal persons – who pay bribes or who assist in laundering the proceeds of crimes of corruption committed by public officials that the Court has the authority to prosecute.

The IACC would have the authority to enforce the laws required by the UNCAC, particularly those criminalising bribery, embezzlement of public funds, misappropriation of public property, money laundering and obstruction of justice.^[9] This could be done by giving the IACC jurisdiction, with the consent of the state party concerned, to enforce: (a) such existing domestic laws; (b) a uniform version of them included in the treaty creating the Court; or (c) both, at least for a transitional period.

In any event, the IACC would not require the creation of new norms. Rather, it would only provide a forum for the enforcement of existing obligations that are codified in the criminal laws of virtually every country, but not enforced against kleptocrats and their collaborators in the countries that the kleptocrats rule.

Some ask how the IACC will be effective since kleptocrats will not permit their countries to join a court that would be a threat to prosecute them. The IACC would have jurisdiction to prosecute nationals of member states and foreign nationals who commit all or elements of a crime within the jurisdiction of the IACC in the territory of a member state. This is important because kleptocrats routinely conspire with enablers to use international financial systems to launder the proceeds of their corrupt conduct and to relocate them as assets in attractive foreign destinations, while attempting to mask their beneficial ownership of those assets. Countries that are home to international financial centres polluted by the proceeds of corruption, and other countries that are popular destinations for laundered money, are therefore important candidates to join the IACC. If, for geopolitical or other reasons, an IACC member state were unwilling or unable to prosecute a kleptocrat who has engaged in money laundering or another crime involving corruption in its jurisdiction, the kleptocrat would be subject to prosecution in the IACC. Accordingly, the IACC could be created and be effective if it consisted of 20 to 25 representative states, as long as they include some financial centres and attractive destinations for the laundered proceeds of grand corruption.

The IACC will have potential to strengthen the domestic capacity of certain countries to investigate and try complex cases involving grand corruption. The IACC will appoint judges and employ prosecutors and investigators experienced in conducting complicated financial investigation. The Court would work with national and multinational agencies, such as the International Anti-Corruption Coordination Centre, and also work with sophisticated private investigators who are often employed by state agencies to trace looted assets.^[10] The IACC investigators and prosecutors will work regularly with their national counterparts. The IACC judges will be available to advise domestic judges. Thus, the IACC will be able to contribute to strengthening the capacity of many countries to prosecute major corruption cases, just as the International Commission against Impunity in Guatemala (CICIG) contributed to the successful prosecutions of a President and Vice-President of that country.^[11]

Questions have been raised concerning whether the IACC could obtain the evidence necessary to prosecute kleptocrats successfully because much of it will often be in the country that they rule.^[12] This may be a challenging task, but not an insurmountable one. There are now enhanced international efforts to trace the flow of illicit funds, such as the International Anti-Corruption Coordination Centre and the World Bank’s Stolen Asset Recovery Initiative. In addition, looted state institutions, such as the national banks of Mozambique and Ukraine, engage sophisticated private investigators who have demonstrated an ability to trace the flow of illicit assets successfully. However, the countries that have been robbed, frequently lack the capacity to use the evidence resulting from these investigations.

Additionally, the International Consortium of Investigative Journalists, and other courageous investigative journalists and whistleblowers, have discovered substantial evidence of grand corruption, but it is rarely, if ever, used in national courts in countries ruled by kleptocrats. Similarly, prosecutions pursuant to the FCPA and its counterpart statutes often generate evidence, including from witnesses who are willing to testify that foreign officials have received bribes, but that evidence is frequently not used to prosecute them. Such evidence would be put to good use in the IACC.

The developing campaign for the IACC has adopted a similar model. The International Coordinating Committee for the campaign, which was formed in July 2021, is building a global coalition of civil society organisations to advocate for the IACC. In addition, it is working with countries, including Canada and the Netherlands that have the ability to initiate a diplomatic process to establish the court by treaty. There is, therefore, a realistic path for civil society and national governments to work together to establish the IACC, which is urgently needed to fill a crucial gap in the international framework for combatting grand corruption and diminishing its devastating consequences.

Conclusion

There remains important work in progress to refine the concept of the IACC, and to develop further the details concerning its structure and operations. In grand corruption we face a global problem; the IBA contains experience and expertise that could contribute greatly to creating a global solution. We hope that it will join the growing number of world leaders, non-governmental organisations, countries, and courageous young people energetically working to make the IACC a reality.