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

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 Promise and Perils of Cleaning House: Lessons from Italy

In countries beset by endemic corruption, efforts to expose and root out corrupt networks, and to punish the participants, can and should be celebrated. There are, of course, always legitimate concerns about the role that political power struggles may play in anticorruption crackdowns (think China and Saudi Arabia), an issue we’ve discussed on this blog before (see here and here), and that I may turn to again at some point. But in today’s post, I want to put those issues to one side to focus on something different. Suppose that some combination of government investigation, citizen reports, and media scrutiny exposes a major corruption network. Suppose that even though people always suspected that corruption was all too common, the investigation reveals that the rot runs much deeper, and goes much higher, than most people had imagined. Suppose further that, as a result of these revelations, law enforcement agencies take aggressive action, putting many people in jail and causing many others to lose their government positions. Again putting aside for the moment concerns about political bias, this is all to the good. But, what happens “the morning after,” as it were?

The hope, of course, is that by “cleaning house,” the state will be able to turn over a new leaf; the “vicious cycle” of self-perpetuating corruption may be broken, and those corrupt officials disgraced and removed from power will be replaced by a new generation of cleaner (though of course not perfect) leaders. Unfortunately, while that’s one possible scenario, it’s not the only one. In his presentation at last September’s Populist Plutocrats conference, the Italian political scientist Giovanni Orsina used the Italian “Clean Hands” (Mani Pulite) investigation into widespread political corruption, and the subsequent rise of Silvio Berlusconi, to illustrate how, under the wrong set of circumstances, a well-intentioned and widely-celebrated corruption cleanup could contribute to the rise of a populist—and deeply corrupt—demagogue.

I don’t know enough to have a firm opinion on the validity of Professor Orsina’s analysis, and I gather that other analysts have a different view of the long-term impact of Clean Hands, but his arguments strike me as plausible and sufficiently important that they’re worth considering, not only as potential explanations for developments in Italian politics, but perhaps more importantly for their potential applicability (mutatis mutandis) to other cases. In particular, Professor Orsina identifies two related but distinct mechanisms through which an aggressive and seemingly-effective anticorruption crackdown can contribute to the rise of a populist demagogue like Berlusconi. Continue reading

An International Success, Applied in the US: The OECD Law Enforcement Group as a Model for US State Prosecutors

In the United States, the federal government plays a lead role in prosecuting corruption at the state and local level–and many anticorruption advocates and scholars (both in the US and internationally) credit this federalization of anticorruption enforcement with getting rampant local corruption under control. Indeed, the DOJ’s Public Integrity Section was founded in 1976 precisely because it was thought that federal enforcement efforts were required to fill the vacuum created by the inability or unwillingness of state and local law enforcement authorities to bring cases against government officials in their own communities.

Leaving aside for the moment the substantial federalism and sovereignty concerns that have been leveled against this approach, it seems that the federalization of state and local corruption prosecutions worked, and contributed to a significant reduction in corruption across the United States. For this reason, anticorruption advocates frequently suggest that the US experience with federal enforcement should serve as a model for the international community. For example, Judge Mark Wolf’s proposal for an International Anticorruption Court explicitly draws on the US approach, and was likely influenced by Judge Wolf’s personal experience as a federal prosecutor of state and local officials.

I would like to propose the reverse: The United States should take a page out of the international enforcement playbook to improve state-level prosecution of state and local corruption, by implementing something like the OECD Anti-Bribery Convention’s closed-door meetings of law enforcement officials, but for US state-level prosecutors. Here’s why: Continue reading

“Combating Grand Corruption: Is International Law the Answer”: The Debate Continues at Harvard Law School

As readers of this blog know, U.S. Federal District Judge Mark Wolf has been vigorously advocating for the creation of a new International Anticorruption Court (IACC), modeled on the International Criminal Court (ICC), that would have jurisdiction over grand corruption committed by senior national leaders and their associates. His proposal has attracted a great deal of attention, including a critique that I posted a little while back. The proposal also relates to more general questions about the appropriate role for international law and institutions in fighting grand corruption.

Last week, the Harvard Law and International Development Society (LIDS) organized a fantastic symposium on “Combating Grand Corruption: Is International Law the Answer” to tackle some of these issues. Judge Wolf and Luis Moreno Ocampo, who served as the first prosecutor at the ICC, gave opening and closing remarks.

Fortunately the conference was recorded; here are the links to Part One and Part Two. The whole thing is worth watching, but for those of you who are particularly interested in seeing Judge Wolf and I square off in person, his opening remarks in support of the IACC proposal can be found from 4:26-24:43 of Part One, my critique is at Part One, 1:32:20-1:45:52, and his closing remarks (which include but are not limited to a rebuttal of my critique) are at Part Two, 1:11:14-1:30:12.

Other highlights include:

  • Mr. Moreno Ocampo’s opening and closing remarks (Part One, 25:03-42:37 and Part Two, 1:06:18-1:11:06)
  • Akaash Maharaj, Executive Director of the Global Organization of Parliamentarians Against Corruption, on the range of possible international legal responses to grand corruption (Part One, 1:17:00-1:32:07)
  • My Harvard Law School colleague Alex Whiting, former Prosecutions Coordinator at the ICC, on what we can learn from the ICC experience for the proposed IACC (Part One, 1:46:00-1:58-40)
  • Charles Duross, former head of the FCPA Unit at the U.S. Department of Justice, on how the FCPA helps combat grand corruption and what we could do to make it more effective in doing so (Part Two, 3:33-18:17)
  • GAB’s very own Rick Messick on more practical, achievable measures that could make a difference in reducing grand corruption (Part Two, 18:35-29:39)
  • Robert Leventhal, Director of Anticorruption Programs and Governance Initiatives at the U.S. State Department, on measures that the U.S. government is undertaking that make it harder than ever to be a kleptocrat (Part Two, 29:47-42:40)

The Case Against an International Anti-Corruption Court

Judge Mark Wolf recently published a Brookings Paper, and an accompanying Op-Ed in the Washington Post last week, calling for the creation of an “International Anti-Corruption Court” (IACC), modeled on the International Criminal Court (ICC). The proposal is motivated by the twin observations (1) that corruption is incredibly damaging (not only in its economic costs, but also in its link to human rights abuses), and (2) that although corruption is illegal everywhere, in many countries “grand” corruption at the highest levels of government creates a culture of impunity in which the corrupt need not fear punishment.

Judge Wolf is not only a distinguished jurist, but also an experienced prosecutor of corruption cases within the United States, and for these reasons alone his proposal is worth taking seriously. And I am very much in agreement with him about the insufficiency of current anticorruption measures, particularly in those countries beset by the culture of impunity that he and others have so vividly described. Yet I find myself deeply skeptical of his proposal for an independent IACC. Indeed, I think the proposal is at best unhelpful, and at worst counterproductive. Let me explain why.

Continue reading