Over the last year or so, proposals for an International Anti-Corruption Court (IACC), modeled on (but distinct from) the International Criminal Court (ICC), have attracted an increasing amount of attention in the anticorruption community and beyond. This attention is due in part to the understandable frustration with the continued impunity of many kleptocrats, and in part to the instinctive attraction (in some quarters) to international judicial solutions to political problems. It’s also the result of the dogged and determined advocacy of IACC proponents. As some readers of this blog probably know, I’m skeptical. But I nonetheless admire the IACC advocates for their willingness to think creatively and to spark an important debate.
That admiration, however, is waning, and the reason is simple: For all their talk about wanting to start a conversation, IACC advocates have shown surprisingly little interest in engaging, in any serious way, with substantive objections to the proposal. It’s now over 18 months since the campaign for an IACC began. Very early on, sympathetic but skeptical critics—including me, as well as several others (see here and here)—raised a number of serious questions and concerns. These concerns are not minor details about implementation—they go to the heart of the proposal, and if the criticisms are on the mark, then the whole enterprise is misguided. Now, maybe the criticisms are not well-founded; maybe there are good answers to all of them. Yet so far IACC advocates have not really provided those answers. (To be fair, the main pro-IACC webpage includes an FAQ section that purports to offer some preliminary responses, but to call those responses “thin” would be generous.) When pressed, IACC advocates have a tendency to respond with one or both of the following rejoinders: (1) “Corruption is really bad—don’t you want to stop it?”; (2) “The critics have raised a number of concerns that will need to be addressed when we work out the details of the proposal.” But nobody in this debate seriously disputes the harms of corruption, and the criticisms that have been raised are not about minor details. At this point, if IACC advocates are serious, they need to offer more than that, and what’s to be found on the brief FAQ page.
Just to recap the main objections:
- First, an IACC would require that sovereign states consent to giving an international court the authority to determine whether each state’s legal system is adequate to hold accountable senior leaders who engage in acts of grand corruption, and if the international court decides that it isn’t, that court would be empowered to arrest, try, convict, and imprison the state’s leaders. There’s essentially zero chance that states ruled by corrupt elites—or, for that matter, states sensitive to sovereignty concerns—will ever sign onto this. And without that consent, the whole proposal is stillborn. The IACC is thus an example of what my colleague Adrian Vermeule would call a “self-defeating proposal,” in which the diagnosis of the problem to be solved (here, the unwillingness of political leaders to surrender their impunity), if accurate, means the proposed solution (here, asking them to consent to a surrender of their impunity) cannot possibly work.
- Second, the proposals for addressing the first problem, as outlined on the FAQ page and elsewhere, propose extreme coercive measures–like kicking states that don’t join the court out of the WTO, denying them foreign aid, expelling them from UNCAC, etc.—that are unworkable and counterproductive. They’re unworkable because (A) most of the kinds of coercive pressure envisioned require the agreement of several of the very states that would likely resist the IACC, and (B) because the states where IACC is most needed—kleptocracies—would likely reject the court even at great cost. These coercive proposals are counterproductive because (A) trade and aid sanctions, if imposed, would probably worsen the corruption problem. given that poverty and international isolation are significant drivers of corruption, (B) the threat of such sanctions would likely increase the citizenry’s sympathy for the corrupt leaders, and (C) the threat of sanctions—almost certainly targeted at weak developing countries—would send the message that anticorruption is a kind of Western/Northern neo-imperialism (thus undermining two generations’ worth of progress in refuting this old canard).
- Third, even if such a court somehow got up and running, it’s far from clear it would be sufficiently effective to justify the massive costs. Investigating complex economic crimes like grand corruption would be very, very difficult without the cooperation of the defendant’s home country (which would almost certainly not be forthcoming if the defendant is, say, that state’s president). The resource costs would be very high. Given the experience with the ICC (which in many ways has a much easier mandate), it’s unrealistic to imagine that an IACC could secure more than a handful of convictions each decade. (The ICC has managed only two in over a decade.) Yet it would be enormously costly (the price tag for the ICC so far has been well over $1 billion), and might well divert resources (not only money, but expertise, energy, and attention) from less glamorous but more effective anticorruption efforts. If the international community is going to devote another $1 billion to anticorruption efforts over the next 10 years, is this really the best way to spend the money? (And don’t say there’s no trade-off. Of course there is.)
There are lots of other questions and objections one could pose to IACC advocates, but the three just listed seem like a good starting place. I’ve now had numerous conversations (in both formal and informal settings) with several IACC advocates in which these points have come up, and I have yet to hear even an attempt at a serious, substantive answer. (And, again, “corruption is really bad” doesn’t count as a response, since that point is not in dispute.)
Look, I’m happy to be convinced that I’m wrong. I’m wrong all the time. Maybe the IACC is a great idea. But I’m starting to get the worrisome impression that some IACC advocates are more interested in lobbying and promotion than in actually thinking through the merits of their proposal and responding to critics. And that’s disheartening. This isn’t a game. This isn’t about scoring points for getting your pet proposal on the agenda of big conferences or mentioned in high-profile speeches or getting endorsements or signatures on a petition. This is about figuring out what will actually work in the fight against corruption. So, putting politeness and pleasantries aside, I’ll issue a challenge to IACC advocates (and I hope other people who engage in these conversations do something similar): It’s time to offer plausible, substantive answers to the above three criticisms. It’s time to produce sustained, analytic papers evaluating the proposal–not just advocacy briefs. Those of you have been promoting the IACC idea deserve credit for starting this conversation, but after a year and a half, it’s time to get serious.