About Matthew Stephenson

Professor of Law, Harvard Law School

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). Continue reading

Brazil’s Electoral Dilemma: Which Outcome Will Be Better for Anticorruption?

My post last week expressed some dismay at the political situation in Brazil, and the role that understandable disgust at widespread corruption in the left-wing Worker’s Party (PT), which controlled the presidency from 2003 to 2016, seems to be playing in contributing to the astonishing electoral success of far-right candidate Jair Bolsonaro. Bolsonaro—whose extremist views, history of bigotry, violent rhetoric, and admiration for autocrats has led some to label him, with justification, as a quasi-fascist—was the top vote-getter in the first round of Brazilian’s two-round presidential election system, and he is favored to win the run-off against PT candidate Fernando Haddad on October 28. Though I’m no expert on Brazil or its politics, this situation—voter revulsion at the corruption of the mainstream parties leading to the rise of a tough-talking extremist—is distressingly familiar. It’s a pattern we’ve seen play out in several countries now, usually with quite unfortunate consequences. So, much as I believe that corruption is a serious problem, and tend to support aggressive anticorruption efforts—including the so-called Car Wash (Lava Jato) investigations in Brazil—I used my last post to express my dismay that anticorruption sentiments might propel someone like Bolsonaro to victory. Some things, I argued, are more important than corruption.

The post seems to have touched a nerve—I’ve gotten far more feedback on that post (some in the public comments section, some in private communications) than anything else I’ve written in the four and half years I’ve been blogging about corruption. While some of the comments have been the sort of substance-free invective one gets used to on the internet, a lot of people have provided useful, thoughtful, constructive criticism and pushback of various kinds. So I thought that perhaps it would be worth doing another post on this general topic, and connecting my thoughts about the current Brazilian political situation to some more general themes or problems that those of us who work on anticorruption need to confront, whether or not we have any particular interest in Brazil. Continue reading

Guest Post: Toward Global Standards for Defense Sector Governance

Amira El-Sayed, Program Manager for Transparency International’s Responsible Defence Governance program, contributes today’s guest post:

The governance of military power presents one of the great global challenges of our age. The defense sector is large, powerful, and secretive, and for those reasons especially vulnerable to corruption. In many countries, small groups of elites divert defense resources for personal enrichment, which can create risks to a state’s stability and security. Perhaps ever more troubling, in many countries powerful militaries run vast and secretive business empires exempt from oversight. Some of these businesses, such as resource extraction, are nominally legal, but militaries are often enmeshed with illegal activities like the trafficking of drugs, arms, and people. This too threatens state security, in at least two ways. First, poorly governed, corrupt militaries may be unable to respond effectively to genuine national security threats. Second, when the military uses its power to secure economic advantages for elites, this may contribute to the public resentment and frustration that can fuel violent extremist movements.

Improving governance in the defense sector is especially challenging. Defense sectors have historically hidden behind an “exceptional” status that has been used to stymie governance reform, with “national security” invoked as a sweeping justification to evade legitimate scrutiny from independent institutions and experts, such as auditors, anticorruption institutions, and civil society organizations. And this is not just an issue in authoritarian states: even in democracies, militaries are often exempted from meaningful oversight by parliamentary committees, judiciaries, audit offices, and anticorruption bodies, even as oversight by those bodies expands in other areas. While the need for secrecy may well be more pressing with respect to certain aspects of military and defense policy, the exemption of the defense sector from meaningful scrutiny is often overbroad, unjustified, and used to mask corruption, misuse of resources, and incompetence.

So how do you address one of the most complex challenges in governance, in a sector that has been exceptionally secretive, opaque, and impenetrable? Some of the work has to be done at the national level in individual countries, tailored to the each country’s specific circumstances. (There are many examples of such work by Transparency International (TI) and other civil society organizations. For instance, in Ukraine TI worked to establish high-level defense anticorruption committee called NAKO, and in Nigeria TI worked with the Air Force to take examine its governance structures and anticorruption systems.) But what about global standards, along the lines of what has been developed in other areas, like human rights and labor? Here there appears to be a significant gap. True, some security-related instruments do provide some principles for state/military behavior in specific areas, such as the OCSE Code of Conduct, UN Arms Trade Treaty, the NATO Building Integrity Programme, and the Tshwane Principles. And some of the general anticorruption or governance-related instruments, such as the UN Convention Against Corruption and Open Government Partnership, have some limited applications to the defense sector. But none of these instruments offers a comprehensive global approach to defense governance.

To fill this gap, TI is launching an initiative to formulate, formalize, and promote a set of global principles that underpin responsible, accountable governance of military power—principles that would embrace the idea that the military must be accountable to the people and that would, if followed, improve domestic governance of the defense sector. That is, TI is working with national governments, other civil society organizations, and the international community to develop Global Standards for Responsible Defense Governance, embodied in a Declaration on the Responsible Governance of Military Power. Continue reading

Some Things Are More Important Than Corruption (Brazilian Elections Edition)

In the anticorruption community, it is fairly common to puzzle over—and bemoan—the fact that voters in many democracies seem to support candidates that are known or reputed to be corrupt. “Why,” we often ask, “do voters often elect or re-elect corrupt politicians, despite the fact that voters claim to despise corruption?” One of the common answers that we give to this question (an answer supported by some empirical research) is that even though voters dislike corruption, they care more about other things, and are often willing to overlook serious allegations of impropriety if a candidate or party is attractive for other reasons. We often make this observation ruefully, sometimes accompanied with the explicit or implicit wish that voters would make anticorruption a higher priority when casting their votes.

We should be careful what we wish for. Continue reading

Guest Post: Is an International Anti-Corruption Court a Dream or a Distraction?

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. Continue reading

The Lula Opinions (Trial Court Verdict and Summary of Appeals Court Affirmance), Now Available in English Translation

The conviction and imprisonment of former Brazilian President (and current would-be presidential candidate) Luiz Inácio Lula da Silva (known as Lula) is among of the most consequential and polarizing outcomes of a corruption investigation in recent memory. The case that led to Lula’s conviction (one of several that were pending against him) did not necessarily involve the biggest or most important allegations, but it was the one that was brought first, presumably because this was the case where the prosecutors felt they had all the evidence they needed to proceed, though critics insist that the case was rushed through on skimpy evidence in order to disable Lula from seeking the presidency in this month’s election.

I only know a bit about the specifics of the case, which involved a beachfront apartment than a construction company had allegedly promised to Lula in return for helping the company secure contracts with Brazil’s state-owned oil company. (Lula, for his part, claims that he was never promised the apartment and the only evidence otherwise is unreliable testimony from one of the company’s executives, who offered the testimony in exchange for a reduced sentence as part of a plea bargain.) But I’ve been repeatedly told by passionate, seemingly well-informed Brazilians on both sides of this debate that the judicial opinions in this case—the original trial court verdict and the appellate court affirmance—demonstrate that their side of the argument is clearly correct:

  • On the one hand, I’ve been told by several of Lula’s strong supporters that the charges against him are bogus and the conviction is improper. “Just read the judicial opinions from the trial court and the appeals court,” one of them told me last spring, “and it will be obvious that they make no sense, and that there was no real legal or factual basis for the conviction.” (I’m paraphrasing, but only slightly.)
  • On the other hand, I’ve been told by supporters of the prosecution in this case that Lula’s conviction was the right legal result, and that the attacks on the verdict (and the associated attacks on the prosecutors and judges) are politically-motivated obfuscation. “Just read the judicial opinions from the trial court and the appeals court,” several people with this view have emphasized, “and it will be obvious that the law and the evidence amply supported the verdict.”

Since smart, well-informed advocates on both sides have told me I should read the opinions, that seemed like a sensible thing to do. Until recently, though, this would not have been possible, as the opinions were (to my knowledge) only available in Portuguese, which I do not read. But I was recently informed that the trial court opinion, as well as an official summary of the appeals court opinion, are now available online in English translation! I haven’t had a chance to read them yet (the trial court opinion is 185 pages long; the summary of the appellate court ruling is a more succinct six pages); I may post again after I’ve done so if I feel like I’ve got anything useful to say. For now, it occurs to me that there might be other non-Portuguese speakers out there who are following developments in Brazil and would like to read these opinions for themselves, so I’m posting the links:

  • The trial court verdict is here.
  • A summary of the appellate court ruling is here. (I’m still hoping to find and post an English translation of the full appeals court ruling.)

Hopefully this will be helpful to others who are trying to work through what they think about the accusations and counter-accusations swirling around this high-profile case. Again, there’s only so much an outsider can learn from the text of court opinions, especially without knowing more about the surrounding context and the details of Brazilian law, but I figure this will at least be helpful.

[NOTE: The original version of this post erroneously characterized the appeals court document linked to above as the full appeals court ruling. That was incorrect; the online document is an English translation of the summary of the appeals court ruling. The text of the post–as well as its title–have been changed to correct this mistake.]

Tracking Corruption and Conflicts of Interest in the Trump Administration–October 2018 Update

Since May 2017, GAB has been tracking credible allegations that President Trump, as well as his family members and close associates, are seeking to use the presidency to advance their personal financial interests, and providing monthly updates on media reports of such issues. After a lapse of a few months during this past summer, we’re again updating the tracker on a monthly basis. The October 2018 update is now available here. Notable additions since the previous update include:

  • Reports that Trump’s Bedminster Golf Club offered discounts to President Trump’s White House staff on branded golf club merchandise, apparently to encourage White House staff to wear Bedminster apparel as a way of promoting the resort and the brand.
  • Reports that President Trump has been personally involved in plans regarding the construction of a new FBI headquarters, including suspicions that President Trump may have interceded to ensure that the new headquarters would be built at the same location as the current headquarters, across the street from the Trump International Hotel, rather than at a larger and more secure location in the suburbs, because the Trump hotel benefits financially from its proximity to FBI headquarters.
  • Reports that administration officials with financial or processional ties to the steel industry have been exercising their influence to deny tariff exclusions to companies applying for such exclusions under Trump’s new steel tariffs.

As always, we note that while we try to include only those allegations that appear credible, we acknowledge that many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.