The Progressing Proposal for An International Anti-Corruption Court

III. The International Anti-Corruption Court

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Authors
Mark L. Wolf, Richard J. Goldstone, and Robert I. Rotberg
 

Because grand corruption has international consequences and flourishes in many countries in meaningful measure due to the lack of enforcement of domestic criminal laws, the IACC is justified and necessary. Creation of the IACC was first proposed in 2014.20 It has been, and remains, an evolving concept.21 Some details concerning the IACC must be further developed. However, as Justice Jackson said in 1945,

It is important that we do not allow the assumptions that lie at the foundation of any worthwhile judiciary to become obscured in issues or pressures about details. These are not unimportant matters, but they are subsidiary to . . . the great principles on which an international tribunal must be based.22

The fundamental features of the IACC as currently conceived include the following.
 

Endnotes

A. The Officials Subject to Prosecution in the IACC
 

The IACC would have the authority to prosecute Heads of State or Government, certain other high-level public officials (such as those appointed by a Head of State or Government), and anyone who knowingly and intentionally assists one or more of these individuals in the commission of a crime within the IACC’s jurisdiction. Therefore, the IACC would, for example, have the authority to prosecute private parties who pay bribes or who assist in laundering the proceeds of crimes of corruption committed by public officials whom the court has the authority to prosecute.

Heads of State or Government, and other officials within the jurisdiction of the court, would not have personal immunity (ratione personae) or functional immunity (ratione materiae) from prosecution in the IACC while in or after holding office. Personal immunity protects all acts of an individual while in office, and functional immunity provides protection to officials only for their official acts while they were in office.

By joining the IACC, a member state would agree that such immunities do not protect its present or former officials from prosecution in the IACC. Like treaties establishing the ICC and other international courts,23 the treaty creating the IACC would provide that officials of third-party countries, including present and former Heads of State or Government, would not have immunities in the IACC that usually protect them from prosecution in national courts other than their own. This would be consistent with authoritative statements of customary international law. In 2019, the ICC Appeals Chamber decided, in a situation referred to it by the UN Security Council involving President Omar al-Bashir of Sudan, which is not a member of the ICC, that principles of personal and functional immunity apply to “horizontal relationship between States,” but “no immunities under customary international law operate . . . to bar an international court in its exercise of its own jurisdiction.”24 The ICC’s decision in al-Bashir followed a 2002 decision of the International Court of Justice (ICJ), in which it held that an “incumbent or former [Head of State or Government] or Foreign Minister may be subject to criminal proceedings before certain international courts, where they have jurisdiction.”25
 

Endnotes

  • 23Article 27, paragraph 2 of the 1998 Rome Convention states that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such a person.” Other international courts have or had comparable provisions. See, for example, Charter of the International Military [Nuremberg] Tribunal, Article 7; International Criminal Tribunal for the Former Yugoslavia, Article 7.2; The International Criminal Tribunal for Rwanda, Article 6.2; and The Special Court for Sierra Leone, Article 6.2.
  • 24Situation in Darfur, Sudan in the Case of The Prosecutor v. Omar Hassan Ahmad Al-Bashir(The Appeals Chamber of the ICC, May 6, 2019), para. 114, accessed January 14, 2022. The decision of the ICC in the al-Bashir case has been questioned by some scholars primarily because it involved the issue of whether a State Party had an obligation to cooperate with the ICC and deliver al-Bashir to the court after he had been charged, when he would be immune from prosecution in that State’s national courts. See, for example, Sarah Nouwen, “Return to Sender: Let the International Court of Justice Justify or Qualify International Criminal Court Exceptionalism Regarding Personal Immunities,” The Cambridge Law Journal 596 (November 2019): 604–610. Other scholars believe the ICC decision “is correct as a matter of international law.” See Leila N. Sadat, “Why the ICC’s Judgment in the Al-Bashir Case Wasn’t So Surprising,” Just Security, July 12, 2019.
  • 25Case Concerning the Arrest Warrant of 11 April 2000 (The International Court of Justice, February 14, 2002), accessed June 13, 2022. In the Arrest Warrant Case, the ICJ cited as authority for the principle that incumbent or former high officials do not have immunity from prosecution in international courts, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the ICC. Idem. Subsequently, in finding that Charles Taylor, who was the incumbent president of Liberia when criminal proceedings against him were initiated, did not have immunity, the Special Court for Sierra Leone wrote in 2004 that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international tribunal or court.” Prosecutor v. Charles Taylor Decision on Immunity from Jurisdiction (Special Court for Sierra Leone, May 31, 2004), para. 52, accessed June 13, 2022.

    The current calls by many countries for the prosecution of Russian President Vladimir Putin in the ICC and in a special tribunal with the authority to prosecute him for the crime of aggression, which is not within the jurisdiction of the ICC, reflect a significant political consensus that incumbent Heads of State or Government do not have immunity from prosecution in international courts for certain crimes. See, for example, The Parliamentary Assembly of the April 28, 2022, Council of Europe, Resolution 2436 (“an ad hoc international criminal tribunal . . . should have the power to issue international arrest warrants and not be limited by State immunity or the immunity of heads of State and government.”); and Larry D. Johnson, “United Nations Response Option to Russia’s Aggression: Opportunity and Rabbit Holes,” Just Security, March 1, 2022 (a UN tribunal established at the request of Ukraine would “as an international tribunal [be] clearly able to pierce the veil of head of state immunity”).

B. Crimes Subject to Prosecution in the IACC
 

The IACC would have the authority to enforce the laws required by the UNCAC, particularly those criminalizing bribery, embezzlement of public funds, misappropriation of public property, money laundering, and obstruction of justice.26 This could be done by giving the IACC jurisdiction, with the consent of the state party concerned, to enforce existing domestic laws, a uniform version of them included in the treaty creating the court, or both.

In any event, the IACC would not require the creation of any new norms. Rather, it would provide a forum for the enforcement of existing obligations that are codified in the criminal laws of virtually every country but not enforced against kleptocrats and their collaborators in the countries that the kleptocrats rule.
 

Endnotes

C. The Authority to Prosecute Nationals of Nonmember States
 

The IACC would have jurisdiction to prosecute nationals of member states and foreign nationals who commit all or elements of a crime within the jurisdiction of the IACC in the territory of a member state. Therefore, a kleptocrat who, for example, accepts a bribe in a state that is not a member of the IACC and uses the banking system of a member state to transfer or hide the proceeds of that crime in violation of the member state’s domestic laws could be prosecuted for money laundering in the IACC if the member state were unable or unwilling to prosecute.

This is important because kleptocrats routinely conspire with enablers to use international financial systems to launder the proceeds of their corrupt conduct and to relocate them as assets in attractive foreign destinations, while attempting to mask their beneficial ownership of those assets. For example, the leaders of Russia are widely suspected of such behavior. In 2016, the ICIJ’s Panama Papers revealed that close associates of President Vladimir Putin moved $2 billion (in individual transactions involving up to $200 million) through international banks and companies created to mask their true beneficial owners.27 Putin’s friend since childhood, a cellist who had claimed he was not wealthy, was revealed to have almost £19 million in a Swiss bank, as well as investments in numerous Russian and offshore entities, including a 3.9 percent share of a Russian bank with assets of almost $11 billion.28 In 2017, Russian Prime Minister Dimitri Medvedev was revealed to had accumulated more than $1 billion worth of property, including land in Tuscany and two yachts.29

Similarly, after uprisings prompted in part by indignation at pervasive corruption, in January 2022 the family of Kazakhstan’s former president, Nursultan Nazarbayev, was revealed to have bought many expensive properties in London while he was in office.30 Those properties include one of Prince Andrew’s homes, bought by Nazarbayev’s son-in-law for £15 million.31 As of 2020, the former president’s daughter and grandson owned property in London worth at least £80 million.32

Crimes such as conspiracy and money laundering are continuing offenses, elements of which may be committed in part in several jurisdictions. If an official of a nonmember state or a coconspirator launders money in a member state, he or she would be subject to prosecution in that member state or, under the principle of complementarity, subject to prosecution in the IACC if the member state itself were unable or unwilling to prosecute.

Again, the experience of the ICC is illustrative. The ICC authorized an investigation of possible war crimes committed by members of the U.S. military in Afghanistan, which is a member of the ICC, although the United States is not.33 Similarly, the ICC is investigating possible crimes committed by individuals in the nonmember state of Myanmar, who coerced Rohingya people to flee to Bangladesh, which is a member state. The investigation was permitted because, as the ICC stated, “under customary international law, states are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside of its territory, as long as there is a link with their territory.”34

If even one element of an offense were committed by a kleptocrat in an IACC member state, the crime could be prosecuted there. If the state were willing but lacked the capacity to prosecute, or was for geopolitical or other reasons unwilling to prosecute, the kleptocrat and his or her coconspirators could be prosecuted in the IACC.
 

Endnotes

D. Complementarity
 

The IACC would be a court of last resort. Operating on the principle of complementarity, it would investigate or prosecute only if a member state itself were unwilling or unable to prosecute.

Absent a referral from a member state, the IACC would decide whether to defer to the member state or exercise jurisdiction itself. In doing so, the IACC would be guided by principles in Article 17 of the Rome Statute that created the ICC and the substantial jurisprudence concerning complementarity developed, and continuing to develop, in the ICC. Like the ICC, the IACC would consider, for example, whether the member state is already investigating or prosecuting the matter; if so, whether those actions constitute a good-faith effort or a pretext to protect a possible criminal from being held accountable; and, in any event, whether the member state has the capacity to conduct the investigation or prosecution independently, impartially, and effectively.35 In addition to the factors in Article 17 of the Rome Statute, in deciding whether a member state is unwilling or unable to carry out an investigation or prosecution, the IACC would also consider whether its national judiciary generally operates honestly rather than corruptly.

An IACC operating under the principle of complementarity would give many countries an incentive to improve their own capacity and efforts to prosecute corruption. Evidence indicates that both a former president of Colombia and the Revolutionary Armed Forces of Colombia factored the possibility of ICC prosecution into their negotiations to end a fifty-year civil war.36 This evidently contributed to the ICC’s decision to conclude a lengthy preliminary investigation of Colombia and to enter into a joint cooperation agreement in which Colombia pledged to continue relevant proceedings in good faith and the ICC pledged to support Colombia in doing so.37 In reaching this agreement, the ICC and Colombia noted that the cooperative relationship they had developed during the ICC’s preliminary investigation “strengthened the country’s capacity to administer justice for the most serious crimes of concern to the international community as a whole, which constitutes a valuable experience that may be replicated in other situations around the world.”38

The IACC will have similar potential to strengthen the domestic capacity of certain countries to investigate and try complex cases involving grand corruption. The IACC will employ investigators experienced in conducting complicated financial investigations; work with national and multinational agencies that do so, such as the International Anti-Corruption Coordination Centre; and also work with sophisticated private investigators who are often employed by state agencies to trace looted assets.39 In addition, the IACC will employ prosecutors with experience in trying complicated cases concerning financial crimes, and it will be comprised of judges with substantial experience in presiding in such cases. IACC investigators and prosecutors will work regularly with their national counterparts, and IACC judges will be available to advise domestic judges. In this way, the IACC will contribute to strengthening the capacity of many countries to prosecute major corruption cases, just as the International Commission against Impunity in Guatemala (CICIG) contributed to the successful prosecutions of a president and vice president of that country.40
 

Endnotes

E. The IACC Will Be Important to the Victims of Grand Corruption
 

Kleptocrats rob the countries they rule of vast sums that are needed for the health and welfare of their citizens. Corruption is, therefore, a major obstacle to achieving the 2030 Sustainable Development Goals.41

The criminal prosecution of kleptocrats in the IACC could result in the recovery and return or repurposing of stolen assets. The sentence for the conviction of a kleptocrat in the IACC could include both a term of imprisonment and an order of restitution or disgorgement of illicit assets for the benefit of victims.42

The capacity of the IACC to recover the proceeds of grand corruption would be magnified if the court were empowered to decide civil cases brought by private whistleblowers.43 The U.S. False Claims Act (FCA) authorizes and incentivizes such suits. Under the FCA, civil actions can be initiated by private citizens, who sue on behalf of the United States those who have allegedly defrauded the U.S. government, including in cases involving the alleged collusion of public officials who have been bribed. If the Department of Justice takes over the case, the private citizen who initiated it is entitled to a substantial payment from any settlement or judgment. If the Department of Justice does not take over the case and the suit is settled or won, the private citizen receives at least 25 percent of the amount recovered for the government. FCA cases have resulted in the recovery of billions of dollars in the United States, including $3 billion in 2019 alone.44 Comparable cases in the IACC could do the same for many countries. In any event, with or without a counterpart of the FCA, the IACC would provide a vital forum for using the evidence developed by courageous whistleblowers in countries with law enforcement agencies and judiciaries that are dominated by kleptocrats and are often corrupt themselves.

Perhaps the greatest value that the IACC would provide to victims of grand corruption would be creating the credible threat that kleptocrats will be prosecuted and punished, thus deterring them from committing crimes that are difficult to address and redress after they occur. Evidence indicates that prosecutions of human rights abuses in the ICC, as well as in domestic courts, are deterring violations of human rights.45 ICC investigations have, for example, catalyzed reforms in the Democratic Republic of the Congo, Sudan, Guinea, Georgia, and Colombia.46 This has prompted some scholars to conclude that “ICC investigations, indictments and convictions or those triggered by complementarity are likely to encourage actual or potential perpetrators to reassess the risks of punishment—relative to the status quo, which is often impunity—and to moderate their behavior.”47

The deterrent effect of an International Anti-Corruption Court on grand corruption should be even greater than the ICC’s impact on violations of human rights. War crimes and related human rights abuses typically occur during armed conflict, when perpetrators may view the ends as justifying the means. In contrast, grand corruption involves discretionary crimes of calculation. When there is no risk of sanction because the official controls all power to prosecute and punish, there is nothing to inhibit an avaricious leader from enriching himself corruptly. However, when the credible threat of extraterritorial prosecution and imprisonment is established, the calculation—and the conduct—should change.48

The deterrent effect of the threat of prosecution is illustrated by experience in Angola. In 2016, then-President José Eduardo dos Santos, who held office for thirty-eight years until 2017, made his daughter Isabel the head of the national oil company and the wealthiest woman in Africa.49 While dos Santos was president, Angola had the highest percentage of children of any country who did not live to the age of five.50 Despite Angola’s vast national resources and the wealth they generated, more than half of the country’s population had no access to healthcare.51 One of President dos Santos’s last acts before leaving office was to give immunity from prosecution to his family and himself, providing additional evidence that kleptocrats fear being prosecuted and punished and therefore are capable of being deterred.52

If the threat of prosecution in the IACC does not deter a kleptocrat, successful prosecution there would likely result in a sentence of imprisonment and probably, therefore, the official’s removal from office. This would provide the best antidote to grand corruption: the opportunity for the democratic process to replace kleptocrats with leaders dedicated to serving their citizens rather than enriching themselves.
 

Endnotes

F. Common Questions Concerning the IACC
 

Some argue that the IACC would be a violation of national sovereignty.53 However, any country that joins the court will be deciding to share some of its authority to prosecute kleptocrats, in certain circumstances, in order to give integrity to the domestic laws it enacted as party to the UNCAC.

Others suggest that, if an international forum for prosecuting grand corruption is desirable, perhaps it should be the ICC rather than the IACC.54 However, the Rome Statute that created the ICC and established its jurisdiction cannot be properly interpreted as providing the authority to prosecute grand corruption.55 An amendment to the Rome Statute would require a vote of two-thirds of the Assembly of States Parties and would not come into effect until one year after seven-eighths of the states parties ratified the change.56 Some of the ICC’s 123 member states are ruled by kleptocrats who would oppose such an amendment.57 Expanding the jurisdiction of the ICC to include grand corruption is, therefore, unlikely to be politically feasible.

Moreover, in view of the global demands on the ICC’s limited resources, including grand corruption in its mandate would, as a practical matter, prove to be inadequate. Required to prioritize potential cases, prosecutors would inevitably feel compelled to focus on genocide, war crimes, and crimes against humanity rather than on grand corruption, despite its serious consequences.

The ICC cost about U.S.$168 million in 2021.58 Some argue, therefore, that creating the IACC would be too expensive.59 However, the IACC would be organized to be less costly and more efficient than the ICC. Its jurisdiction would be more limited, and its procedures less complex and protracted. The IACC would not, for example, require pretrial chambers.60 The number of judges on active and remunerated service could be made contingent on the caseload of the court.61 In addition, the IACC could use courthouses around the world to conduct trials as close as possible to the victims of grand corruption and, in the process, reduce the cost of the facilities the IACC would require.

In any event, corruption is estimated to cost trillions of dollars annually, and grand corruption contributes greatly to that cost.62 The IACC would deter and reduce grand corruption, saving some countries enormous sums of money. In addition, a conviction in the IACC could result not only in a prison sentence but in an order of restitution to the victimized country. Fines imposed by the IACC might be used to defray, and possibly cover, the costs of its operation. Therefore, the IACC would be cost-effective.

Questions have also been raised concerning whether the IACC could obtain the evidence necessary to prosecute kleptocrats successfully because much of that evidence will often be in the country that they rule.63 This may be a challenging task but frequently not an insurmountable one. In recent years, enhanced international efforts have been undertaken to trace the flow of illicit funds. The International Anti-Corruption Coordination Centre was created in 2016 to facilitate and coordinate investigations of corruption, including crimes involving bribery of public officials, embezzlement, and money laundering.64 It is staffed by expert law enforcement agents from the United Kingdom, the United States, Canada, Singapore, New Zealand, and Australia. Switzerland and Germany participated in establishing the Centre and remain involved. In 2020, the Centre authorized smaller countries to become associate members. Interpol also works closely with the Centre.65 In addition, often with the urging of the International Monetary Fund, among others, looted institutions, such as the national banks of Mozambique and Ukraine, engage sophisticated private investigators who may successfully trace the flow of illicit assets. However, the countries that have been robbed frequently lack the capacity to use the evidence resulting from these investigations.

Members of the ICIJ and other courageous investigative journalists and whistleblowers have discovered substantial evidence of grand corruption, but it is rarely, if ever, used in national courts in countries ruled by kleptocrats. Similarly, prosecutions pursuant to the FCPA and its counterparts often generate evidence, including from witnesses who are willing to testify that foreign officials have received bribes, but that evidence is frequently not used to prosecute those officials. Again, Russia is illustrative.

In 2008 and 2010, respectively, the multinational corporations Siemens AG and Daimler AG admitted, in prosecutions in New York for violating the FCPA, to paying millions of dollars in bribes to Russian officials, as well as to officials in many other countries. . . . In their plea bargains, Siemens and Daimler each agreed to cooperate in the prosecution of the Russian officials they had bribed. The evidence, including names of twelve officials bribed by Siemens, was turned over to the Russian government. Then-President Medvedev promised to pursue the cases, yet no Russian official has ever been prosecuted for taking a bribe from Siemens or Daimler.66

Such evidence would be put to good use in the IACC.

Finally, some have argued that the IACC will not be effective because kleptocrats will not permit their countries to join a court that might prosecute them. However, kleptocrats regularly launder the proceeds of their criminal activity through major financial centers, invest them in foreign countries, and conspire with enablers in foreign countries to do both. The IACC would have jurisdiction over crimes committed by nationals of an IACC member state and crimes committed by nonnationals in the territory of an IACC member state. Countries that are home to international financial centers polluted by the proceeds of corruption, as well as countries that are popular destinations for laundered money, are promising candidates to join the IACC. If, for geopolitical or other reasons, an IACC member state were unwilling or unable to prosecute a kleptocrat who has engaged in money laundering or another crime involving corruption in its jurisdiction, the kleptocrat would be subject to prosecution in the IACC. Accordingly, the IACC could be created and be effective if established with far less than universal participation if it includes a diverse group of representative states, as well as some financial centers and attractive destinations for the laundered proceeds of grand corruption.

Endnotes

Authors
Mark L. Wolf, Richard J. Goldstone, and Robert I. Rotberg
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IV. The Campaign to Create the IACC
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