Judge Mark Wolf recently published a Brookings Paper, and an accompanying Op-Ed in the Washington Post last week, calling for the creation of an “International Anti-Corruption Court” (IACC), modeled on the International Criminal Court (ICC). The proposal is motivated by the twin observations (1) that corruption is incredibly damaging (not only in its economic costs, but also in its link to human rights abuses), and (2) that although corruption is illegal everywhere, in many countries “grand” corruption at the highest levels of government creates a culture of impunity in which the corrupt need not fear punishment.
Judge Wolf is not only a distinguished jurist, but also an experienced prosecutor of corruption cases within the United States, and for these reasons alone his proposal is worth taking seriously. And I am very much in agreement with him about the insufficiency of current anticorruption measures, particularly in those countries beset by the culture of impunity that he and others have so vividly described. Yet I find myself deeply skeptical of his proposal for an independent IACC. Indeed, I think the proposal is at best unhelpful, and at worst counterproductive. Let me explain why.
Before getting to my substantive criticisms, it’s perhaps worth clarifying what Judge Wolf’s proposal adds to the existing debate on this topic. After all, the idea of treating at least some forms of grand corruption as an international crime is not new. Starting almost two decades ago, Professor Ndiva Kofele-Kale, for example, has argued for the recognition of a new international crime of “patrimonicide.” And in 2007, Professor Sonja Starr wrote an influential article arguing that the ICC already could — and in her view should — treat kleptocracy as one of the “other inhumane acts” subject to ICC jurisdiction under the Rome Statute. The Global Organization of Parliamentarians against Corruption (GOPAC) has made a similar argument, and in 2008 SERAP, a Nigerian NGO, petitioned the ICC to “examine and investigate whether the systemic/grand corruption in Nigeria amounts to a crime against humanity within the jurisdiction of the ICC,” and filed another such petition in 2012, specifically in connection with an alleged $6 billion dollar looting of Nigeria’s fuel subsidy program. (The ICC has yet to take action on either petition.) These proposals to treat grand corruption as an international criminal law violation, subject to the jurisdiction of an international legal tribunal, have been debated extensively in the scholarly literature, the popular press, and the blogosphere (for a few illustrative examples, see here, here, here, here, and here).
So what does Judge Wolf’s contribution add to this existing debate? Four things, in my view.
- First, although Judge Wolf suggests in passing that the IACC could be incorporated into the existing ICC, he parts company with most of those currently advocating the international criminalization of grand corruption by proposing an IACC as a separate body. (Though he’s not the first to suggest this either: Malam Nuhu Ribaldu, former chief of the Nigerian Economic and Financial Crimes Commission advocated something like this in 2010, and the idea has occasionally been floated by other since then — see here and here. Still, Judge Wolf’s is probably the most detailed elaboration of the proposal for a separate institution to date.)
- Second, Judge Wolf appears to envision a broader scope for the conduct that would count as “grand corruption” subject to IACC jurisdiction. Most advocates of international criminalization, like Professors Kofele-Kale and Starr, would limit international criminal liability to the large-scale looting of the sort associated with so-called “kleptocracies.” Judge Wolf would include those cases as well, but many of the examples he offers in his paper suggest that in his view leaders who fail to take effective action against smaller-scale (but still significant) corruption, perhaps due to crony-ish relations between the leaders and the malfeasants, would also fall within the jurisdiction of his proposed court. (In that sense, he seems to endorse a “dereliction of duty” theory of grand corruption, something I have written about before in a different context.)
- Third, Judge Wolf is much more explicit in laying out how, exactly, countries will be encouraged (coerced?) into submitting themselves to the jurisdiction of the proposed IACC. In his words:
[S]ubmission to the jurisdiction of the International Anti-Corruption Court should be incorporated into the United Nations Convention Against Corruption. It should also be made a condition of membership in international organizations such as the OECD and WTO, and for obtaining new loans from international lenders such as the World Bank.
- Fourth, Judge Wolf would give the IACC not only criminal jurisdiction, but also civil jurisdiction, and would further allow “whistleblowers” who report corruption to the IACC to recover a proportion of the civil award recovered, much like relators in U.S. False Claims Act cases (and would further allow the relator/whistleblower’s lawyer to work on a contingency fee basis, though oddly he doesn’t address the fact that in many countries contingency fees are prohibited).
So what’s wrong with all this? Perhaps the biggest problem is that an IACC of the sort that Judge Wolf advocates would (correctly) be seen as a dramatic intrusion on traditional state sovereignty. In joining, a state would allow an international body to decide whether “grand corruption” exists in that state, and whether that state’s existing anticorruption law enforcement is adequate (the principle of “complementarity”). If the international tribunal determines that the answers are “yes” and “no,” respectively, that body could impose both civil and criminal liability on individual national leaders.
Now, I don’t really care about “infringements on sovereignty” in and of themselves. But the question is whether any powerful country, or country where corruption is a big problem, would sign onto this. Would Russia? Would China? India? Brazil? For that matter, would the United States? Judge Wolf thinks that one of the big advantages of his proposed IACC has over the existing ICC is that while the US has refused to join the ICC, it should have no objection to the IACC. The reason, he explains, is that “American companies generally behave quite ethically, and … are significantly deterred from paying bribes by … the FCPA.” But that’s a non sequitur. It’s not American companies that would be worried — they presumably wouldn’t be subject to IACC jurisdiction anyway. It’s American political leaders. After all, many people characterize the U.S. system of campaign finance as a form of “institutional corruption,” and even putting that aside, U.S. politics is rife with accusations of cronyism and (corrupt) favoritism. (Consider, for example, claims that Dick Cheney influenced U.S. government policy to favor Haliburton, his old firm). And if the understanding of “grand corruption” includes not just theft or bribe-taking by high-level government officials, but also failure by those officials to take action to punish corruption by friends or political allies (something that, as noted above, Judge Wolf’s examples indicate would indeed fall within the scope of his proposal), then just about every U.S. President, or any other national leader, could feel potentially vulnerable to IACC liability. Now, I’m not saying that an IACC, if created, actually could or would assert jurisdiction over someone like Dick Cheney. But as Judge Wolf acknowledges, the U.S. resistance to the ICC has persisted despite the fact that the ICC’s principle of complementarity should preclude cases against U.S. officials. Given all that, it’s hard to imagine the U.S. signing on.
And what about the many, many countries where patronage politics is still a major part of the political scene — such as Afghanistan or Argentina or Thailand? Can we imagine that political leaders in these countries or similar would allow an international tribunal to determine whether their political patronage machines are corrupt? Even if some countries did sign on — even if the U.S. did — I can’t imagine that such an agreement would include China, Russia, Brazil, India, Indonesia, Saudi Arabia, Nigeria, or South Africa. And I also can’t imagine how any such court could function without the participation of those countries. This is, of course, a critical difference between the proposed IACC and the U.S. experience with federal prosecution of state and local officials, which Judge Wolf repeatedly invokes as a model. U.S. states don’t have a choice as to whether to submit to the jurisdiction of federal prosecutors (unless they want to start a second Civil War). Sovereign countries do.
But what about Judge Wolf’s proposed enforcement mechanisms? Require submission to the IACC as part of the UN Convention against Corruption (UNCAC)! Kick countries out of the OECD and the WTO if they don’t sign on! Threaten to cut off World Bank funding!
Thee are a few problems with this. First, adopting any of these sanctions would require the agreement of many of the very same countries who would not want to join this new court in the first place. But even if we could imagine waving a magic wand so that these new conditions were implemented, the attempt to coerce submission to the IACC would likely backfire.
Consider UNCAC. UNCAC’s only enforcement mechanism is an occasional (and quite constrained) peer review, and even with that limited enforcement, UNCAC already frames many of its more controversial and potentially intrusive provisions in aspirational or voluntary terms. A hard requirement that any member of UNCAC had to submit itself to IACC jurisdiction would lead, quite simply, to the collapse of UNCAC, because that condition would be a deal-breaker for most current members. That would be hugely counter-productive: rather than helping to fight the culture of impunity, tying UNCAC membership to accepting IACC jurisdiction would turn the IACC into a poison pill that would kill one of the most successful efforts over the last generation to establish anticorruption as a universal international norm.
And that leads directly to the larger problem with tying WTO membership and eligibility to World Bank loans to acceptance of IACC jurisdiction. The result of forcing countries to choose between accepting IACC jurisdiction and suffering the punishments Judge Wolf proposes is likely to be that countries opt for the latter rather than the former — thus (a) causing the WTO to collapse and thereby destroying the international trading system, and (b) denying loans to some of the countries that need them most (and where the economic development those loans support might make real contributions to the fight against corruption).
Now, maybe I’m wrong about that. Maybe the threat of economic sanctions — trade barriers and loan/aid cutoffs — could coerce some number of countries into signing onto an IACC. But that would only exacerbate another problem: the perceived neo-imperialism of the whole enterprise. That perception would likely be all the worse if — as seems likely — most of the early targets of the IACC are poor, non-Western countries. The result would likely be an enormous, perhaps irreparable setback in the progress that has been made over the last generation in establishing that anticorruption is not in fact a Western/Northern obsession, driven by the desire of wealthy countries to feel good about themselves and pass judgment on the ill-governed global South. As readers of this blog know, I’ve been sharply critical of those who advance that claim. But it’d be much harder to rebut that critique in a world where wealthy countries forced poorer countries — on pain of being cut off from the international economy — to allow an international tribunal to impose civil and criminal liability on its leaders for failing to do enough (in the view of distant judges based in The Hague) to suppress corruption.
By the way, on the subject of whether this new court would impinge on the sovereignty of states coerced into compliance, Judge Wolf’s main response struck me as somewhat puzzling. He writes:
[T]he FCPA, and comparable statutes enacted in other countries, already create a form of universal jurisdiction for the bribery of foreign officials… Prosecution in The Hague, or some similar venue, should be a less offensive incursion on national sovereignty than an FCPA prosecution in the United States based on the decision of a single country.
But the FCPA does not create “universal jurisdiction.” FCPA jurisdiction is based either on presence in the United States (via the voluntary decision to list on a U.S. exchange, or physical presence), or else on nationality (the law applies to U.S. citizens and domestic concerns, even when acting abroad). And the FCPA applies to bribe-payers, not to the bribe-taking government officials in other countries. The affront to national sovereignty comes when an international body asserts jurisdiction to try a government official for a crime, over the objections of the official’s own government, when the international body would not have any of the traditional bases (nationality, territoriality, etc.) for asserting jurisdiction. That’s clearly an infringement on traditional notions of sovereignty. Not an unprecedented one, of course — the ICC operates on the same model. But still, much more intrusive than the FCPA.
Oh, and what about concerns about enforcement bias by the IACC? After all, Judge Wolf rightly notes that the ICC has been criticized for its exclusive focus (so far) on Africa. He attributes this alleged bias to the fact that Africa is (a) disproportionately represented in membership in the ICC, and (b) is the site of a great many of the crimes against humanity that have occurred since the ICC was created in 2002. Any actual bias that may exist (for example, the failure to initiate investigations in Iraq, Afghanistan, or Myanmar) is, he suggests, due to the opposition of the U.S. or other U.N. Security Council members. And not to worry, he says, the U.S. will be willing to join the IACC!
I’ve already explained why I’m skeptical that the U.S. would join the IACC, and even if it did, I’m not sure why that would make the perception of bias against the global South better rather than worse. But even putting that aside, I don’t think I follow why Judge Wolf’s observations about the reasons the ICC has focused on Africa alleviate the concern about perceived bias of his proposed IACC, and the consequences that bias could have for undermining the international movement against corruption. Nor do these observations address the very real risk of actual bias. As an honorable judge and former prosecutor, known for his unimpeachable integrity, Judge Wolf might perhaps be a little too confident that all of his judicial and prosecutorial brethren are equally evenhanded in all cases. Yet strong empirical evidence exists that even in the United States, federal prosecutors exhibit partisan political bias with respect to the corruption charges they bring (or don’t bring) against state and local officials. There are ample reasons to imagine that an international body might be even worse in this regard.
One last quick note on the proposal for civil liability, coupled with a relator-style bounty provision: I’m a big fan of private enforcement generally, and the relator model in particular, but one downside of such systems is that they tend to produce a huge volume of litigation–much of it meritless, or at least unsuccessful–that places substantial burdens on the system. Imagine the consequences of telling anyone in the world they can allege grand corruption (and don’t have to pay for a lawyer), and avail themselves of a specialized international tribunal — and, if successful, they might net millions of dollars. Simply to describe that system is to show why it’s infeasible without either (a) some way to screen the informants’ claims at the front end, or (b) a massive (and probably unrealistic) increase in the resources available to the court (scores of judges would presumably be required; I’m not sure where Judge Wolf thinks we’ll find them).
Now, all these problems might not matter so much if an IACC, once established, would make significant headway in combating grand corruption and suppressing the culture of impunity, and if this goal could not be achieved as effectively any other way. But I don’t think either claim is accurate. As I said, those countries that are really ruled by out-and-out kleptocrats will never join onto a court like this, no matter what you threaten them with. Even if some countries joined, this court would never be able to address more than a sliver of the corruption problem — “grand” and otherwise. The ICC, Judge Wolf’s principal model, has, after all, done relatively little in its decade-plus in existence. Moreover, as I’ve noted, there are a number of ways Judge Wolf’s proposed IACC could actually prove counterproductive — eroding the international norm against anticorruption, emboldening some leaders to resist other forms of pressure to clean up their acts, possibly triggering a backlash among citizens in certain countries who resent the intrusiveness of the IACC, and — for those countries that remain outside the IACC despite Judge Wolf’s proposed sanctions — cutting them off from the economic opportunities and international engagement that might, in the long term, do more to reduce corruption than the punishment of a handful of officials from a few, likely very poor, countries.
Nor is it the case that something like the IACC is the only way to make any headway against entrenched corruption. In fact, there are lots of other tools that countries can use — and have been using with increasing frequency — to try to get at this problem. The emerging focus on international asset recovery and anti-money laundering is one example. Other, softer forms of domestic and international pressure are another — as are the political demonstrations and protests that Judge Wolf rightly celebrates. The progress is halting, uneven, and frustratingly slow — but there is progress nonetheless. The energy and resources of the anticorruption community would be better spent trying to strengthen these movements than searching for some kind of deus ex machina that can solve the problem from above.