Guest Post: An International Anticorruption Court Is Not a Utopian Dream or a Distraction

Today’s guest post is from Richard Goldstone, a former Justice of the Constitutional Court of South Africa who also served as the first chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, and Robert Rotberg, the President Emeritus of the World Peace Foundation and former professor at the Harvard Kennedy School of Government.

In a 2018 Daedalus article, Senior United States District Judge Mark L. Wolf explained that “The World Needs an International Anticorruption Court (IACC)” and charted a course for its creation. In a recent post on this blog, Professor Alex Whiting characterized the IACC as a “utopian” dream and possibly “a distraction from more effective responses to the worldwide scourge of grand corruption.” Notably absent from the post is a description of what the other effective responses to combating grand corruption might be.

In contrast to Professor Whiting, we found Judge Wolf’s original proposal for an IACC compelling. Therefore, we joined him in establishing Integrity Initiatives International (III).

The mission of III (pronounced “triple I”) is to strengthen the enforcement of criminal laws in order to punish and deter corrupt leaders who regularly violate human rights. III actively supports national measures, and also promotes closer collaboration between human rights and anticorruption organizations. In addition, III is forging a network of young people, in Latin America particularly, dedicated to combating corruption in their own countries and throughout the world. All of these efforts also serve III’s goal of catalyzing a coalition and, ultimately, a formal campaign to create the IACC. This Court would serve as a forum to prosecute corrupt leaders who violate the criminal laws of their own countries with impunity because they control the police, the prosecutors, and the courts.

Professor Whiting acknowledges that Judge Wolf “persuasively argues [that] national governments have failed to adequately address grand corruption in their own jurisdictions, with significant adverse consequences for international security and prosperity…and convincingly draws the connection between corruption and threats to security.” 183 countries have signed the United Nations Convention Against Corruption (UNCAC), and have an international obligation, under the Vienna Convention on the Law of Treaties and UNCAC itself, to enforce the criminal laws that UNCAC requires against their nation’s leaders. An IACC, acting on the principle of complementarity, would provide the essential forum for prosecuting corrupt leaders of countries that are unwilling or unable to discharge this duty themselves.

Advocacy for the IACC has enhanced international understanding of the importance of strengthening enforcement of the laws required by UNCAC and, in the process, led to productive partnerships to combat corruption. For example, when III was working with the White House and Secretary of State in preparation for the 2016 London Anticorruption Summit, the British National Crime Agency enlisted its assistance in the successful effort to create an International Anticorruption Coordination Centre. In the Centre, the United Kingdom, the United States, and several trusted allies cooperatively trace the international flow of the proceeds of corruption. An IACC would be a forum for the prosecution of cases of grand corruption that the Centre develops which cannot be effectively pursued in countries with corrupt prosecuting authorities. The Centre would be an invaluable investigative asset for the IACC.

More recently, III worked closely with the IMF, the World Bank, and, particularly, young Ukrainian leaders of the Euromaidan revolution to achieve legislation creating a national Special Anticorruption Court. III has since proposed 3 of the 12 candidates recommended by the international community to serve on the crucial panel of foreign experts which will have the authority to veto the appointment judges who are not honest or able. III’s colleagues recognize that the special national court may be undermined by their adversaries and an IACC may, therefore, be essential to the success of their efforts to combat grand corruption in Ukraine. Accordingly, they are strong supporters of the IACC.

The common criticisms of the International Criminal Court (ICC) on which the IACC would be modeled, which Professor Whiting echoes, are thoroughly addressed by Judge Wolf in his Daedalus article. Among other things, Professor Whiting notes that while 33 African countries joined the ICC, the most from any region, Burundi has withdrawn and South Africa, under then-President Jacob Zuma, threatened to do so. More significantly, however, in his recent keynote speech at the 20th anniversary celebration of the ICC, Nigerian President Muhammadu Buhari, the African Union’s Anticorruption Champion, said that a “strong and effective ICC” has the potential to “act as a catalyst for … expanding the reach of accountability … [including to] serious cases of corruption by state actors that severely compromise the development efforts of countries and throw citizens into greater poverty.” III believes that cases of grand corruption are not within the jurisdiction of the ICC and, in part to assure they are given proper priority, a separate IACC should be established. It is now beginning to work with President Buhari’s advisors to advance his vision of an international forum for the prosecution of grand corruption.

As Professor Whiting notes, the ICC evolved from the first international tribunal at Nuremburg, which was – with difficulty and controversy – created by the United States, Britain, France, and Russia to try Nazi leaders for atrocities. It took 50 years for the ICC to be born in what Professor Whiting calls “a diplomatic golden moment,” that he does not expect to recur for creation of an IACC. It should be recognized that decades of dedicated efforts, when the outcome was uncertain, were necessary to create the conditions that could be capitalized upon in that “golden moment.” However, such initiatives do not always take decades to succeed. As Judge Wolf explained in his Daedalus piece, the International Campaign to Ban Landmines began in 1992, outside the UN framework, and resulted in a treaty signed by 122 Nations only five years later.

Professor Whiting suggests that the supporters of the IACC suffer from “naïve utopianism.” Of course, we recognize that there are formidable challenges. However, comparable claims were made about the campaign to end apartheid in South Africa. Therefore, experience causes us to believe that Nelson Mandela was right when he said that “[i]t always seems impossible until it is done.” Moreover, as the effort to create the IACC is already generating partnerships and other initiatives that are making valuable contributions to combating corruption, the effort is meaningful despite the inevitable uncertainty of the outcome.

Professor Whiting thoughtfully raises questions, including questions of law, that cannot be addressed properly in a blog post and, indeed, would benefit from the work of legal scholars and others. However, he reminds us of United States Secretary of War Henry L. Stimson, an architect of the Nuremberg trials, who in his memoir On Active Service in Peace and War wrote that future generations should “not turn aside from what they have to do, nor think that criticism excuses inaction.”

In this spirit, we invite Professor Whiting, and all others, to join us in refining the concept of the IACC and working to make it a reality.

5 thoughts on “Guest Post: An International Anticorruption Court Is Not a Utopian Dream or a Distraction

  1. There is an international court at Brussel, of nothing major betterment of international disputes. The proposed court will be 2nd such a thing, but of some professional legal earnings.

  2. I very much appreciate your taking the time to write a response to Professor Whiting’s post. Like Professor Whiting, I’m an IACC skeptic, but I recognize that it’s a hard issue with a lot of uncertainty surrounding many of the key questions, so I always welcome more debate and discussion.

    Respectfully, however your response to Professor Whiting did not seem to be all that responsive. Professor Whiting’s post made two main claims, based largely on his expertise on the ICC and similar international tribunals: (1) the current political situation makes it extremely unlikely that an IACC would be viable, partly because of the experience with the ICC, and so the fact that the ICC (or other international tribunals) were adopted doesn’t actually provide much support for the claim that an IACC could be politically feasible; (2) even if adopted, an IACC would not be effective because it could not acquire the necessary evidence against grand corruption without cooperation from the very states whose sitting leaders are under investigation.

    Of your post’s ten substantive paragraphs, the first six don’t say anything about either of these critiques, or really much about the IACC at all. Rather, those first six paragraphs discuss how bad corruption is and all the good work that your NGO is doing in various places around the world (supporting the special court in Ukraine, helping to mobilize youth in Latin America, providing advice in connection with the London Anti-Corruption Coordination Centre, etc.). That’s all great, but doesn’t have much to do with the IACC proposal or Professor Whitings’s criticisms, except in the very tangential sense that your NGO also promotes the IACC.

    Paragraphs 7-9 or your post do take up Professor Whiting’s first challenge, regarding the political feasibility of the IACC proposal. He argued, persuasively in my view, that the major powers (the US, Russia, China, etc.) almost certainly wouldn’t join, and that small and medium states are much less likely to join an IACC than they were to join the ICC, precisely because of how things have worked out with the ICC. I didn’t find in your response any actual engagement with the substance of Professor Whiting’s arguments. All there seems to be is a combination of inspirational quotes and references to other international agreements, like the Landmines Treaty, that don’t really seem on-point. It doesn’t seem adequate to respond to a very specific, substantive argument about why _this_ proposed international agreement is unlikely to succeed by saying, “Well, this other one (on a totally different topic with very different politics) succeeded,” and then throwing in a Nelson Mandela quote that’s better suited to a commencement speech than to a serious discussion of institutional reform strategy.

    As for Professor Whiting’s powerful–in my view devastating–argument that an IACC, even if created, would be ineffective because it lacks (and could not conceivably be granted) the sorts of intrusive powers that, say, US federal prosecutors have when they go after state and local corruption, your post says nary a word. In your 10th paragraph, you just say “Professor Whiting thoughtfully raises questions, including questions of law, that cannot be addressed properly in a blog post and, indeed, would benefit from the work of legal scholars and others.” And then you offer yet another vague and general inspirational quotation, this time from Henry Stimson.

    I’m sorry, but that’s not adequate. Professor Whiting did indeed raise thoughtful questions, and while a blog post may not be the place to fully develop the answers, the fact that you weren’t able to even sketch the outlines of a possible answer strikes me as telling. I’ll confess that this is one of the moves that IACC advocates make all the time that drives me a bit bonkers. (See my post on that particular topic here: https://globalanticorruptionblog.com/2016/03/01/dear-international-anticorruption-court-advocates-its-time-to-answer-the-critics/.) The IACC proposal has been bandied about for over three years now. Critics, including Professor Whiting, have taken it seriously and raised thoughtful objections that go not to little details, but to the fundamental issue of whether this is an idea worthy investing substantial resources in pursuing. At this point, it’s no longer acceptable to respond to such objections by saying, “That’s an interesting point, there are a lot of issues, and we’ll work that all out later, but now you should join us in pushing for the court, and your concerns will be addressed at some point in the future.” If after all this time IACC advocates are unable to respond to the most basic questions about the feasibility and effectiveness of this proposed institution, why should the proposal be taken seriously?

  3. Thanks for this. After reading your first paragraph, I assumed in the rest of your piece you’d address what you said was missing from Professor Whiting’s post, which is to say I thought you’d lay out “description[s] of what the other effective responses to combating grand corruption might be,” and then demonstrate how those responses are flawed, inadequate, or quixotic in their own right, and that, in actuality, an IACC is the best of a variety of incomplete solutions. However, after reading the rest of the post, I found myself more convinced that existing techniques for addressing grand corruption, such as the work of advocacy groups like III, can be effective in combatting corruption. In a way, I was less convinced that an IACC was necessary, because the alternatives seem to be making ok progress getting the job done. And that’s where some of the failures to address Professor Whiting’s second point (that Professor Stephenson pointed out above) really told me, because without coercive powers, it’s hard to see how an IACC could address failures by national authorities to address domestic corruption that seems to be the major enforcement gap in the current architecture. An IACC with those sorts of powers would, I think, be able to achieve something that the current response mechanisms to grand corruption cannot. However, after reading the post, I’m still more persuaded by Professor Whiting’s critiques.

  4. Stolen Assets as a form of Kleptocracy is a crime that should be label as one against humanity. As such the crime should be handled by the International Criminal Court.

  5. A committed internationalist at heart, I enjoyed reading your post and hearing about the work you’re doing to enhance national anti-corruption work as well as international collaboration. While others have already raised some of Whiting’s criticisms, I wanted to add a new question to the pile: complementarity. In short, how do you envision complemantarity – a principle you cite in the beginning of your piece — working in the IACC context? To me, it seems highly complicated for two reasons.

    First, in the case of corruption, unlike human rights, I imagine more crimes occur trans-border such that, in any given instance, it’s more likely at least one state could bring a prosecution of some kind. For example, let’s say French company A bribes a dictator in the country of “Ames.” France and the country of Ames would probably both be positioned to bring a suit against the company. Let’s say France does and Ames doesn’t, owing to lack of capacity and the internationalist belief that the IACC should handle it, would the rule of complementarity not apply because the country of the corruption’s “origin,” in this case Ames, did nothing? Or would it apply because France did bring a suit, even if only a small fine was levied at the end of the day on the company.

    Relatedly, what punishment or process would satisfy the rules of complementarity seem infinitely more complex in the anti-corruption context where there are range of civil/criminal remedies – not to mention declinations, DPAs, etc. – as compared with the human rights context where presumable a criminal prosecution is sufficient.

    You give some strong examples of international collaboration in the anti-corruption space in your post. Furthermore, I can accept the potential, at least in part, that collaboration of the kind you mention might someday be applied to a global court. But, as a legal mater, I’m curious how you envision what complementarity should – in the most ideal of worlds – look like given the two attributes I’ve mentioned.

    Reply ↓

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