What, Besides Creating a New Court, Could the International Community Do To Fight Grand Corruption? A Partial List

Last week, Richard Goldstone and Robert Rotberg posted a response to Professor Alex Whiting’s critique of the proposal to create an International Anti-Corruption Court (IACC). Early in their response, Goldstone and Rotberg–both advocates for an IACC–remarked, a bit snarkily, that “[n]otably absent from [Professor Whiting’s] post is a description of what the other effective responses to combating grand corruption might be.”

That struck me as a bit of a cheap shot. Professor Whiting’s post offered a careful, thoughtful argument based on his experience and knowledge of the International Criminal Court (ICC) and similar tribunals, and not every such critical commentary on a given proposal must include a full-blown discussion of alternatives. Still, Goldstone and Rotberg’s implicit challenge to IACC skeptics to articulate alternative responses to grand corruption is worth taking seriously, for two reasons:

  • First, this seems to be a common rhetorical gambit by advocates for an IACC, or for other radical measures that critics deem impractical: Rather than answering and attempting to refute the critics’ specific objections directly, the move is to say, “Well, but this is a huge problem, and there’s no other way to solve it, so poking holes in this proposal is really just an excuse for inaction. This may seem like a long shot, but it’s the only option on the table.”
  • Second, and more charitably to those who make this point, grand corruption is indeed an enormous problem that needs to be addressed. And so even though not every critical commentary on a particular proposal needs to include a full-blown discussion of alternatives, those of us who (like me) are skeptical of deus-ex-machina-style responses to the grand corruption problem ought to make a more concerted effort to lay out an alternative vision for what can be done.

In this post I want to (briefly and incompletely) take up the implicit challenge posed by Goldstone and Rotbert (and, in other writings, by other IACC proponents). If the international community is serious about fighting corruption, what else could it do, besides creating a new international court and compelling all countries to join it and submit to its jurisdiction? When people like Professor Whiting (and I) suggest that lavishing time and attention on the IACC proposal might be a distraction from other, more effective approaches, what do we have in mind? What else could international civil society mobilize behind, besides something like an IACC, to address the problem of grand corruption?

Here are a few items on that agenda:

  • Asset seizure, forfeiture, and return. It’s not always possible to go after the kleptocrats themselves, but the international community can go after their assets. This is already happening to some degree. The US DOJ has its Kleptocracy Asset Recovery Initiative, the UK has recently instituted the “Unexplained Wealth Order” mechanism, and other jurisdictions have been beefing up their laws targeting illicit assets as well. But there’s a lot of progress to be made. Though it’s hard to be certain of any statistics in this area, I gather that most analysts believe that only a tiny fraction of looted assets are found and seized. There’s much more that can and should be done in this area.
  • Targeted individual sanctions and travel bans. It’s also possible to put pressure on kleptocrats and their cronies by denying them access to the international financial system, as well as travel to the jurisdictions where they might want to spend their assets. The U.S. Global Magnitsky Act is an example of legislation along these lines, and the U.S. also has other legal mechanisms in place for targeted sanctions. But these could be used more aggressively, and by a wider range of countries, to deal with high-level officials who pillage their countries.
  • Stronger and more vigorously enforced anti-money laundering laws. More generally, since one of the most effective ways to go after the corrupt is to go after their money—and one of the best ways to hold them criminally accountable outside of their own jurisdictions is to nail them on money laundering or related offenses—strengthening laws and legal enforcement in this area would be most helpful. I’m not an AML expert, but I gather that there are a number of reforms that would make it easier to identify dirty money and prosecute those who move it through the system and attempt to disguise its origins. Among other things, pushing for an end to anonymously-owned companies—making beneficial ownership information available at least to law enforcement, and perhaps to the general public as well.
  • Pressing for the creation of independent and effective domestic law enforcement institutions. One of the odder features of the Goldstone and Rotberg response to Professor Whiting’s post is that, while the response is ostensibly a defense of the IACC, much of the post is devoted to extolling the excellent work done by their NGO (Integrity Initiatives International) in supporting national-level institutional reforms to combat grand corruption, such as pushing for the creation of a special anticorruption court in Ukraine. Ukraine may be a bit of an unusual case, because its dependence on foreign lenders, like the IMF and the United States government, gave those lenders leverage to push harder for domestic institutional reforms than would be possible in many other countries. But this sort of international pressure for more effective domestic anticorruption bodies, coupled with scrutiny and criticism when the independence or capacity of those bodies is threatened, is another thing that the international community can do to make progress against grand corruption.
  • Internationally-backed independent investigative bodies. One of the biggest success stories in the last several years of international intervention to support action against grand corruption is probably the anti-impunity commission in Guatemala (known by its Spanish acronym CICIG), backed by the UN (with substantial US financial support), and staffed by distinguished and experienced foreign prosecutors. CICIG’s investigations into grand corruption brought down a sitting president and vice president, and more generally exposed corruption networks that would probably never have been discovered otherwise. CICIG’s success suggested that it could be a model for other countries in the region and beyond. Unfortunately, Guatemala’s new president has announced his intention to terminate CICIG, and some of the commissions in other countries allegedly based on CICIG have been designed in such a way that they are unlikely to be effective. The international community can and should support more institutions of this kind, and defend them against attacks.
  • Private civil suits against kleptocrats. A major breakthrough in the struggle to hold kleptocrats legally accountable occurred almost exactly one year ago, when a French court found Teodorin Nguuma Obiang, Vice President of Equatorial Guinea and son of that country’s president, guilty of laundering the proceeds of grand corruption, and imposed substantial fines, a (suspended) prison sentence, and confiscation of assets. What’s especially notable about this case is that it was brought by civil society groups. Though such private enforcement actions are not feasible in many jurisdictions (in the United States, for example, such an action would likely be barred), there are a number of countries, most obviously France, where kleptocrats have substantial assets and where such suits are viable. Such actions are expensive and complicated, and those in the international community interested in fighting grand corruption through the courts could support those organizations that bring these cases.
  • Support for independent media and civil society. One of the most effective ways to expose grand corruption and to hold the perpetrators accountable, at least politically if not legally, is through a robust, independent, well-resourced media and civil society sector. Whether it’s the International Consortium of Investigative Journalists, Reporters Without Borders, or countless unsung newspapers, radio stations, and activist groups all over the world, dedicated investigative journalists and activists can make an enormous difference. True, in a totally closed society, where there’s no way to hold leaders accountable and no real freedom of speech, press, or organization, there’s not much that the media or civil society watchdogs can do. But many countries where grand corruption is a big problem do have a real and active Fourth Estate, one that can, in the right circumstances, help bring down even the most powerful figures. Those in the international community committed to the fight against grand corruption could do worse than to support—materially and politically—independent investigative journalism and other forms of civil society monitoring.
  • Greater transparency in the extractive sector. Given that the extractive sector (especially oil, gas, gems, and precious metals, but also sometimes timber and other agricultural products) is so central in so many instances of grand corruption, greater transparency in this area would help too. Support for so-called Publish What You Pay (PWYP) rules, though they don’t directly impose punishments on corrupt officials, can help constrain the opportunities for corruption and produce evidence that may be used to build cases against those engaged in grand corruption.

This is not an exhaustive list, and I hope and expect readers will be able to suggest other measures that the international community could take to respond to the grand corruption problem. This alternative vision will likely feel less exhilarating than sweeping proposals to remake the international legal system through the creation of an IACC or something similar. And each individual component of the agenda sketched above might seem limited and inadequate, at least when viewed in isolation. But cumulatively, this package of measures that the international community could pursue in the fight against grand corruption may well do much more to actually address the problem—however partially and imperfectly—than devoting resources, time, and political capital to pushing for a pie-in-the-sky dream of an international court. Some out there might disagree with that assessment, and that’s fine—the right way to respond to a daunting challenge like grand corruption is a difficult question, reasonable minds can disagree, and I welcome further debate. But I think we can retire the canard that IACC skeptics don’t have any other ideas for how the international community can fight grand corruption, can’t we?

4 thoughts on “What, Besides Creating a New Court, Could the International Community Do To Fight Grand Corruption? A Partial List

  1. Thank you. This is an excellent survey of tools that can and should be more widely used whether IACC does or does not become a reality. The first set of tools on the list – “asset seizure, forfeiture, and return” – holds the promise of being very effective because it addresses the root cause of grand corruption directly. However, the history shows that when this tool is used by government bodies which lack the profit motive, the results are usually underwhelming (the UK’s Assets Recovery Agency, set up in 2003, recovered only about the third of what the agency spent on its efforts – it was eventually shut down in 2007). Since the hiding of illicitly acquired assets is almost always enabled by profit-seeking intermediaries (including attorneys, company formation agents, wealth managers, bankers, real estate brokers, etc.), an effective counteraction would require at least two measures:
    1) Using private actors (investigators, attorneys, forensic accountants, etc.) or public-private partnerships for tracing and recovering assets, motivated by profit derived from retaining a portion of the recovered assets.
    2) Introducing new sets of rules penalizing the enablers of schemes for hiding proceeds of grand corruption if such schemes are successfully exposed (this is somewhat analogous to penalties introduced in the UK in 2017 for enablers of defeated tax avoidance schemes).

  2. Wonderful list. I would add just two things:
    1) criminalizing foreign bribery in countries where this has not happened yet and enforcing the existing laws. Foreign corrupt public officials are not only “supported” by the bribes from local corrupt businesses – a lot of countries that are perceived as less corrupt tend to have businesses that “export” corruption to foreign corrupt jurisdictions.
    2) strengthening regulations for “golden visas”, to ensure that corrupt public officials cannot hide their assets in foreign jurisdictions by becoming their citizens easily. A good example of how golden visas are used currently to advance the goals of the corrupt is the case of Portugal where due to laws regulating visas, they are used to launder money of even hide illicit assets (more here – https://www.occrp.org/en/goldforvisas/a-portuguese-crusader-seeks-to-tap-the-brakes-on-golden-visas)

    Finally, I have a somewhat open suggestion / question. It is currently mostly up to the private sector to act as gate keepers to the financial systems. The real estate agents must somehow check if their clients are not politically exposed people using their illicit assets to acquire real estate, the banks are supposed to ensure that politically exposed people live according to their means, that their transactions do not signal illicit sources of income… All the while, since there are no official lists of publicly exposed people, this task is left entirely for the private sector and the external vendors providing the databases of politically exposed people that go mostly unchecked… My suggestion would be to have laws obliging the countries to create their own registries of politically exposed people and have those lists accessible for private sector (banks, real estate institutions, etc) and law enforcement institutions trans-border.

  3. Thanks, Professor. This is a great list. I think a real key in this fight is beefed up domestic enforcement, as local measures have greater legitimacy than, say, OFAC sanctions in the fight against corruption at home. With that in mind, I think an important item to add to the agenda is local capacity building. That could take the form of increased funding to bring investigators and prosecutors to countries with more sophisticated anti-corruption regimes for training. Or it could involve law enforcement exchange programs. Or using existing institutional mechanisms like UNCAC reviews to facilitate sharing of best practices. Regardless, I think it’s important to equip anticorruption professionals with the knowledge and tools necessary to be successful, especially in countries that are new to anticorruption enforcement.

  4. Thank you so much for this very interesting post, Professor Stephenson. While I usually feel a little bit uncomfortable with the common response to criticism according to which a critic must suggest a satisfactory amount of alternative solutions, I do appreciate the fact that it may sometimes stimulate follow-up discussions about existing solutions, new ideas, and suggested alternatives. I am glad that Goldstone and Rotberg’s response encouraged a similar discussion in the context of fighting grand corruption.

    One relatively simple thing that international civil society could do to strengthen the effectiveness and the independence of domestic criminal tribunals which adjudicate corruption cases, is to make sure that judicial opinions addressing corruption from non-English speaking parts of the world are translated to English. As I mentioned in my comment on a former post of yours (https://globalanticorruptionblog.com/2018/10/02/the-lula-opinions-trial-court-verdict-and-appeals-court-affirmance-now-available-in-english-translation/), one cannot solely rely on the expectation that official government actors would take it upon themselves to produce English translations of even important opinions about corruption, and therefore this is a task that NGOs might consider doing themselves. I believe that such translations would not only be beneficial to academic research, but also will increase the international transparency of tribunals’ work and consequently improve the ability of the international community to judge and evaluate the effectiveness and the independence of the domestic tribunals. Frequent translation of judicial opinions to English may even – perhaps – encourage a positive change in the way that some tribunals address issues of corruption. Without a full translation, it is often left for one to rely on media reports and other sources to learn about a non-English judicial opinion, and these are often incomplete or biased.

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