My Harvard Law School colleague Professor Alex Whiting, who previously served in the Office of the Prosecutor at the International Criminal Court, as a Senior Trial Attorney at the International Criminal Tribunal for the Former Yugoslavia, and as a US federal prosecutor, contributes today’s guest post:
Since 2014, US Judge Mark Wolf has been vigorously advocating the creation of an International Anti-Corruption Court (IACC), modeled on the International Criminal Court (ICC), to combat grand corruption around the world. Some, including writers on this blog, have expressed skepticism, and have criticized Judge Wolf and other IACC supporters for not offering sufficient detail on how an IACC would work or how, as a political matter, it could be created. This past summer, in an article published in Daedalus, Judge Wolf laid out a more detailed case for the IACC. He again invoked the ICC as the model—both for how such a court could be created and how it would operate.
It is an enticing vision, to be sure: international prosecutors swooping in to collar high-level corrupt actors, further spurring on national leaders to clean up their own houses. It’s all the more enticing given that, as Judge Wolf persuasively argues, national governments have failed to adequately address grand corruption in their own jurisdictions, with significant adverse consequences for international security and prosperity. But the ICC experience suggests the limits rather than the promise of an IACC. Indeed, the ICC’s history demonstrates why it is so hard to see a feasible political path forward to creating an IACC. More fundamentally, an IACC would require a radical re-conceptualization of the ICC model, one that states have never shown a willingness to embrace.
First, let’s consider the question of political feasibility. Judge Wolf holds up the ICC as a demonstration of the idea that proposals for international courts, dismissed by some as utopian pipe dreams, can become a reality. But a closer examination of the ICC’s history, and current attitudes toward that court, in fact demonstrates why new international courts on the ICC model, particularly something like the IACC, would be unlikely to succeed today.
The ICC was born in a diplomatic golden moment between the end of the Cold War and the beginning of the so-called war on terror. The idea for such a court dated back to before World War II. The first example of an international tribunal to try individuals for atrocities occurred just after that war when the United States, France, England, and Russia combined to try Nazi leaders at Nuremberg. But this precedent then lay dormant for some 50 years as the Cold War impeded further international cooperation to punish the perpetrators of atrocities. In the early 1990s, when ethnic conflict broke out in the former Yugoslavia, the stars aligned to resurrect the Nuremberg precedent. By then the Cold War was over, and despite the post-Nuremberg mantra of “never again,” the atrocities occurred right in Europe’s backyard and resulted in images, beamed around the world, of emaciated prisoners behind barbed wire that powerfully reminded of the WWII concentration camps. The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) opened up a run of similar ad hoc international criminal tribunals for Rwanda (ICTR), Sierra Leone (SC-SL), and Cambodia (ECCC). Amidst this exuberant period of international institution building, the Statute of the ICC was adopted in Rome in 1998, following a jubilant, middle-of-the-night vote. Four years later, the Rome Statute entered into force following 60 state ratifications, and the Court opened its doors.
How times have changed. Many countries, particularly in places like Africa, where most of the ICC’s cases have originated, have cooled on the enterprise. True, as Judge Wolf notes, 33 African states have joined the ICC, “the most from any region.” But today the challenge is to keep many of those same states from leaving the Court. One (Burundi) has already left, another (South Africa) is threatening to do so, and over the last several years the African Union has continually toyed with the idea of voting to exit as a bloc. The failure of the ICC to achieve universality in membership has led to a perception that the Court can only target weaker states, a critique that is buttressed by the power of the UN Security Council (UNSC) to refer to the ICC cases arising in states that are not parties to the Rome Statute. (This has occurred twice already, with Sudan and Libya.) Sixteen years into the ICC’s existence, it is difficult to imagine small and medium states signing up to another international court, not simply because the international climate has turned from one of cooperation to one of unilateralism, but also because states have interpreted the ICC experience as a demonstration of the hazards of joining an international institution that lacks global reach. As Judge Wolf himself writes, “Reopening the [Rome] statute in an effort to expand the court’s jurisdiction could lead instead to the demise of the ICC.” The suggestion that states would not renew the ICC if given the opportunity indicates that they would have no appetite for a new IACC, created in the ICC’s image.
Perhaps the answer is that the IACC will be different because the big powers – including the U.S., Russia, and China – will join. But will they? It seems extraordinarily unlikely. Each of these countries, in addition many other major powers, has reasons to eschew such an institution. Judge Wolf suggests that small and medium countries could nonetheless be forced to join by making membership a condition of being a party to the UN Convention against Corruption, the World Trade Organization, or other trade agreements, and perhaps also making membership a condition for receiving foreign aid or loans. He also suggests that the UNSC could refer non-signatory states to the IACC (as occurs with the ICC). Given the ICC experience, however, major powers would likely hesitate before forcing states to join another court that they themselves would avoid. Further, it is not clear that it would be legal for the UNSC to refer non-member states to an IACC. The UNSC relied on Chapter VII of the UN Charter to impose international criminal tribunals on the former Yugoslavia and Rwanda, and to refer to the ICC states that are not parties to the Rome Statute. In each case, the UNSC’s authority to impose a court without the consent of the state derived from a finding that there existed a threat to peace or security that could be addressed by the creation of an international tribunal. (This exercise of authority was upheld by the Appeals Chamber in the very first case at the ICTY, on the grounds that the conflict in the former Yugoslavia plainly represented a breach of the peace, and that an international criminal tribunal, while not expressly provided for in Chapter VII, fell within the range of measures permitted to the UNSC.) While Judge Wolf convincingly draws the connection between corruption and threats to security, it’s a stretch to contend that corruption constitutes a threat to peace within the meaning of the Chapter VII. After all, many social ills may contribute indirectly to the destabilization of societies that, in turn, undermines international security: poverty, climate change, authoritarianism, and so forth. If the presence of any of these factors was enough to trigger Chapter VII, there would potentially be no end to it. For that reason, it’s unlikely that these social harms, despite their seriousness and potentially destabilizing consequences, would in themselves be a sufficient basis for the UNSC to act against a state.
But even if we put aside the question of political feasibility, and assume that somehow the international community could bring into being an IACC on the ICC model, and cajole or compel a sufficient number of states to join, there’s still the question of whether it would be effective. And here too, the ICC experience suggests reasons for skepticism.
Judge Wolf imagines that IACC prosecutors would function like federal prosecutors in the U.S., able to spring into action, armed with powerful investigative tools to mount effective prosecutions when local authorities fail to act. However, the analogy is false and misleading. As Judge Wolf notes, “Federal investigators are authorized to conduct undercover operations and secretly record conversations, and are adept at unraveling complicated financial transactions.” In addition to these tools, federal prosecutors can subpoena records, compel witnesses to testify to the grand jury, get search warrants, and strike deals with cooperating witnesses. But prosecutors and investigators at the ICC, the model for the IACC, have few of these tools. By design, ICC prosecutors are almost entirely reliant on state cooperation to conduct their investigations. If they want to obtain documents or conduct any investigative actions requiring coercive legal measures—such as wiretaps or search warrants—they must make a request to state authorities. Even if they simply want to interview witnesses, they must inform the state that they are coming to the territory to do so. Of course, States Parties and states that are referred to the ICC by the UNSC are legally obligated to cooperate with the ICC. But there are many ways for states to “slow roll” cooperation, and even when they become openly defiant, the prosecution’s only recourse is to ask the judges to refer the recalcitrant state to the Assembly of States Parties or the UNSC. Thus, as the first President of the ICTY, the late Judge Antonio Cassese put it, international courts “can only operate as long as sovereign states are prepared to lend them a helping hand…. As soon as a state on whose territory a witness, material evidence, a suspect or an accused may be found, refuses to bow to international justice, international criminal courts remain powerless.”
To be sure, states will cooperate if there is sustained political pressure on them to do so, and the successes of the ad hoc international tribunals and the ICC have come when such pressure has been applied, or when the state at issue welcomed the investigation. But remember that the premise of the IACC is the failure of state authorities to crack down on corruption. As Judge Wolf writes, “an IACC is needed for the extraterritorial prosecution and punishment of corrupt leaders of countries that are unwilling or unable to enforce their own laws against powerful offenders.” Thus, it is to be expected that state authorities will look for every opportunity to thwart accountability, and corruption investigations offer a host of opportunities to do so.
Furthermore, the need for the full panoply of investigative tools is even more essential for investigations of grand corruption than it is for the investigations into the sorts of atrocities (such as war crimes and genocide) over which the ICC has jurisdiction. Investigating those atrocities is extraordinarily challenging, but at least the conduct being investigated in such cases is largely visible: war crimes and genocide generally involve the mobilization of numerous actors and produces easily identifiable victims, witnesses, and forensic evidence. While it remains difficult to prove the responsibility of senior actors, the crimes themselves are usually beyond dispute. Grand corruption is different: The crime itself is kept hidden and is inherently hard to detect. As Judge Wolf aptly notes, “[T]he enormous wealth corruptly obtained by high officials is typically laundered through a series of complex financial transactions and invested abroad…. The sources of corruptly obtained funds are difficult to trace, and the true beneficial owners of assets acquired with that money are difficult to identify.” That’s absolutely right. It means that corruption investigations typically require investigators to “follow the money”—but an international criminal tribunal is remarkably ill-suited to do so. Obtaining financial records is cumbersome; each record usually shows only that the money has been moved elsewhere, and allows for endless possibilities for obstruction. Obtaining and executing search warrants or wiretaps is impossible without the cooperation of local authorities, who will likely tip off the malefactors. Even when there is international pressure to cooperate with the investigation and some local political will, international prosecutors and investigators are likely to get mired in an endless tangle of obscure and impenetrable financial dealings.
Thus, making anticorruption investigations before an IACC effective would require a radical increase in power and independence as compared with the ICC or any of the ad hoc tribunals. States are unlikely to ever take the step of granting those sweeping enforcement tools to an IACC.
Judge Wolf or other IACC proponents might dismiss these objections as small-minded, lacking in imagination and vision. Even if those proponents concede that the IACC is unlikely to come into being in the next few years, they might argue that in time the world will turn back to international commitments and solutions, including an IACC. And, the argument might continue, the international community will not only embrace the idea of an IACC on the ICC model, but will confer on the associated international prosecutors the sweeping powers they would need–powers that go far beyond what the ICC’s Prosecutor has–so that IACC prosecutors could act like U.S. federal prosecutors, but on a global scale.
Is that impossible? No, it’s not impossible. But it seems extraordinarily unlikely. And the risk of a proposal that is unlikely ever to be feasible, or to succeed even if it were adopted, is that it distracts from other initiatives to combat corruption. There’s nothing wrong with striving to envision bold alternative solutions to seemingly intractable problems, but at the same time we need to avoid naïve utopianism. An IACC is an exciting idea, to be sure, but given the hard-won experience derived from 16 years of the ICC, I fear that this proposal may be a distraction from more effective responses to the worldwide scourge of grand corruption.