As regular readers likely know, GAB has featured a number of commentaries over the past few years on the proposal to create an International Anti-Corruption Court (IACC), modeled on the International Criminal Court, to try senior figures for grand corruption when their domestic justice systems prove unwilling or unable to do so (see here, here, here, here, and here). The idea has attracted a great deal of interest, as well as both support and criticism. To provide a basic overview of the debate so far, a few months ago the U4 Anti-Corruption Resource Center Centre’s Sofie Schütte and I published a short U4 paper entitled “An International Anticorruption Court? A Synopsis of the Debate.”(The brief is also available in French and Spanish.) For those out there who are new to this topic, this U4 Brief is meant to provide some general background information and a succinct summary of (1) the strongest arguments in favor of creating an IACC, (2) the strongest criticisms of the IACC proposal, and (3) an overview of some other approaches to the grand corruption and impunity problems. Hope it’s helpful!
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Thank you for this comprehensive synthesis of the debate. Your portrayal of the arguments on both sides is fair and thoughtful. While I’m convinced there should be more accountability for corrupt leaders who extract state resources for their private gain, I struggle to grasp how a theory of complementary would apply to the IACC in practice. After all, I imagine the need for prosecutorial discretion is greater in the IACC context than in the ICC context where the crimes 1) are violent (making non-prosecution less tolerable) and 2) they implicate a smaller number of individuals (making prosecution more feasible across the board).
I’d be curious to hear your thoughts on whether the following two scenarios would justify IAAC jurisdiction:
First, imagine you have a country with a reformist government that is eager to enhance anticorrution measures across the board. However, leaders in that country have decided that, were they to prosecute everyone in the prior administration for corruption, their courts would be backed up indefinitely & their reform would be regarded as a fig-leaf for political reprisal. And so, they grant immunity to a large class of individuals in the prior administration who committed a class of acts otherwise punishable by law. In this way, they maintain the support of a larger group of people in the legislature and successfully enact a number of reform bills. Should the IACC have jurisdiction to prosecute the persons they intentionally, but with good faith, granted immunity? If yes, should it matter that IACC prosecutions disrupt political reform strategies at the domestic level?
Second, imagine a President decides to pardon an individual who has been convicted of corruption in a fair trial. Would that pardon, following a good-faith investigation and prosecution, justify further action by the IACC?
Thank you for this comprehensive synthesis of the debate. Your portrayal of the arguments on both sides is fair and thoughtful. While I’m convinced there should be more accountability for corrupt leaders who extract state resources for their private gain, I still struggle to grasp how a theory of complementary would apply tot the IACC in practice. After all, I imagine the need for prosecutorial discretion is greater in the IACC context than in the ICC context where the crimes 1) are violent (making non-prosecution less tolerable) and 2) they implicate a smaller number of individuals (making prosecution more feasible across the board).
I’d be curious to hear your thoughts on whether the following two scenarios would justify IAAC jurisdiction:
First, imagine you have a country with a reformist government that is eager to enhance anticorrution measures across the board. However, leaders in that country have decided that, were they to prosecute everyone in the prior administration for corruption, their courts would be backed up indefinitely and/or they would not necessarily maximize their impact. And so, they grant immunity to a large class of individuals in the prior administration. Even if that immunity was granted in good faith, should the IACC have jurisdiction?
Second, imagine a President decides to pardon an individual who has been convicted of corruption in a fair trial. Would that pardon, following a good-faith investigation and prosecution, justify further action by the IACC?