In part 2 of our new mini-series on the factors that may influence the proposed establishment of an international anti-corruption court, we look at various current views expressed by experts, who argue for and against the court, all making valid points. In part 1 we presented an overview of the concept.
The pro-international anti-corruption court (IACC) declaration and campaign, initiated by Integrity Initiatives International (III) and Club de Madrid, kicked off in June 2021 and has garnered widespread support – but equally, there is much scepticism.
As a panellist on a webinar on the topic in March 2022, former Canadian justice minister and attorney-general Allan Rock observed that there are already measures in place to tackle corruption at the international level, such as the Financial Action Task Force and the International Anti-Corruption Coordination Centre, but a dedicated anti-corruption court would “lend a coherent and a coordinated effort through a single court to enforce the laws in question – a global effort”.
Furthermore, the IACC would have complementary jurisdiction, meaning it will only act if the country affected by the corruption was unable or unwilling to do so – in this way, said Rock, it would act as a deterrent for kleptocrats, and as a way of returning stolen assets to the victim.
Finally, an IACC would “level the playing field for business in countries like ours in Canada, countries that cannot pay for bribes in foreign jurisdiction, but are competing with companies that do this”. For this reason alone, Rock added, the idea is getting more and more support from the private sector and from business.
“Why a new court? Well, the scale of grand corruption at the moment globally is enormous … and existing methods are manifestly not succeeding in stemming this flow of corruption, despite everything that’s being done it continues at those astonishing levels. And corruption is at the root of so many evils that we confront in the world today.”
Canada is one of the countries strongly advocating for an IACC. Both Canada and the Netherlands have adopted an official policy of working with international partners to establish the IACC. Dutch foreign minister Wopke Hoekstra recently asked his European Union counterparts to work with the Netherlands to establish the IACC – Netherlands is currently the home of the ICC. Hoekstra stated that “by establishing an anti-corruption court the Netherlands aims to strengthen the international legal order. But to make this happen we will need the support of many other countries.”
However, fellow panellist Matthew Stephenson, a professor at Harvard Law School and editor-in-chief of the Global Anticorruption Blog, was not convinced by Rock’s argument.
Framing current global efforts to eliminate grand corruption as a failure, he said, suggests that no progress is being made or could be made in a meaningful way. Such framing also operates on the presumption that the IACC would have a substantial impact in addressing the problem.
The right way to frame the question, said Stephenson, is to consider the marginal benefit of investing resources in the form of time, attention, and money, among others, into setting up a brand new entity, “as opposed to the other things we could be doing with that time attention, money, resources, etc.”
Stephenson has been involved in the IACC debate for several years. With U4’s Sofie Schütte, he co-authored a report in 2019 which presents the main points for and against an IACC, but also emphasises a range of other steps that can and should be taken to tackle the problem of grand corruption – such as stronger anti-money laundering laws, strengthening countries capacity to effectively prosecute corruption crimes, and finding, freezing and seizing the proceeds of corruption or other unlawful activity.
“My own study of the fight against corruption over time has led me to believe that it really is a long, slow slog with no silver bullets,” he said during the webinar.
Stephenson stressed that his scepticism of the IACC concept in no way implies that he is not serious about the grand corruption problem or dismissive of new and innovative approaches to fighting it. “That’s not what I’m trying to convey. My scepticism arises from concerns about means in particular, whether this is the best use of time, energy, money and political capital, if we’re serious about fighting corruption.”
He also expressed concern about the notion that the IACC would operate in the model of the ICC – that is, in order to be subjected to the court’s jurisdiction, a country would need to join the court. “How can you expect the kleptocratic governments to join the court? They’re not going to do it, and if they don’t do it, what’s the point??
This point is discussed early on in the 2019 report. “The rationale for establishing an IACC in the first place is precisely that the leaders of some countries refuse to allow themselves to be held criminally accountable. Why would a leader who refuses to be held accountable domestically nonetheless agree to submit to the jurisdiction of an international court capable of imposing similar forms of criminal liability? Any country willing to sign onto an (effective) IACC would presumably also be willing to reform its domestic justice system so that even top leaders could be held accountable.”
This raises a question as to how much of a deterrence factor the IACC would really be. “The principal problem is the limited set of tools that prosecutors at international tribunals have at their disposal to investigate crimes … to gather evidence, prosecutors at international tribunals depend almost entirely on cooperation from domestic law enforcement authorities.”
IACC not useful in today’s world
Another panellist, Berlin-based lawyer and member of the Open Government Partnership’s international expert panel, Juanita Olaya Garcia, agreed with Stephenson’s point of view. “The idea of creating an anti-corruption court is beautiful. So you won’t hear me telling you it’s a bad idea but you will hear me telling you it’s not useful, it’s a distraction.”
In a world where resources and energy are scarce, she said, the focus should be on strategies that work here and now. “This is an idea that would have been excellent 20, 30 years ago, at the moment the UN Convention Against Corruption was being signed and the ratification process was starting and the way corruption played out back then. But it’s not an idea suitable for the present nor for the future.”
In addition, she said, an international court would not compensate for weaknesses in the rule of law or the judiciary in certain countries. “This is a false logic. An international court needs those institutions even more than anything else. And it needs them to be strong.”
The final panellist, former Canadian foreign affairs minister and national defence minister Peter MacKay, said an IACC would help to coordinate the global anti-corruption effort in a way that makes it more efficient. “I believe it will lessen the load or thin out the docket at the ICC. It will allow some of the necessary focus to be placed on grand corruption and the kleptocrats.”
Global anti-corruption and policing efforts will have to be coordinated, if the ever-increasing threat of grand corruption is to be successfully tackled, said MacKay. “It’s sharing the load across a broader infrastructure of criminal justice and enforcement and accountability.”
He emphasised that the IACC would not be “another sometimes monolithic system”, but that it would buttress the work of the ICC, and allow more resources to be targeted at grand corruption. “We’ve had the ICC in place now for sufficient time that this could be done in a much more efficient and effective way.”
Some alternative suggestions
Stephenson and Schütte, in their 2019 paper, suggest the following as some possible measures that could supplement, or replace, setting up an IACC from scratch:
- Expand ICC jurisdiction to include grand corruption.
- Empower and encourage regional human rights courts to exercise jurisdiction over corruption.
- Push for international investigative bodies that target corruption and impunity.
- Support the creation of domestic anti-corruption institutions, including specialised anti-corruption courts.
- Build capacity for asset seizure, forfeiture, and return.
- Strengthen the international anti-money laundering (AML) framework.
- Expand jurisdiction of domestic courts over private suits against kleptocrats.
- Make greater use of targeted individual sanctions and travel bans.
- Expand and strengthen regional and international peer review mechanisms.