Our legal fellow, Marija Chekredji, writes about grand corruption as a problem which has devastating effects on democracy, the rule of law, and human rights globally. Even though there is an ongoing debate among the international community regarding the best way to tackle this problem, there is an agreement that grand corruption is a serious problem that warrants a more internationally coordinated approach. One idea that has recently gained momentum is the concept of an International Anti-Corruption Court (IACC) whose purpose would be to prosecute kleptocrats and private individuals who assist crimes of corruption. This article is an exploration of the emerging idea of an IACC, how it came about, why the proponents of this idea believe we need another international court, and how it would function in practice.
“Corruption is a major barrier to the success of the UN [Sustainable] Development Goals. It imperils efforts to […] protect those who are victims of pandemics and epidemics. Corruption inhibits the promotion of democracy and in some cases threatens the promotion of international peace and security. It inhibits action to counter climate change”. [i]
This was the message delivered by Justice Richard Goldstone [ii] at a special event of the UNCAC Coalition’s Working Group on Grand Corruption and State Capture on the 17th of November, 2022. [iii] During this event, Justice Goldstone, Justice Maria Wilson [iv], and Ambassador Allan Rock [v] discussed the latest developments on the International Anti-Corruption Court (IACC). [vi] As proponents of the IACC, they outlined the need for such a court, the proposed features of the court, and the political support for the proposal, focusing on Canada’s efforts in advancing this idea. [vii]
As a citizen of North Macedonia, a human rights activist, and a legal fellow, the concept of an International Anti-Corruption Court is very intriguing to me. North Macedonia is a country where corruption flourishes, where the public prosecutors’ system has failed again and again in investigating and prosecuting grand corruption, particularly in cases where it has been committed by politicians, and where corruption has become normalized in every aspect of life. The devastating effects of grand corruption [viii] on democracy, the rule of law and human rights are very well known, and there is no debate regarding the need to address this issue, both at a national and international level. Corruption is no longer seen as a domestic problem, but an international governance problem. [ix] Therefore, I am very curious as to whether the IACC would be able to effectively address this issue. In my exploration of this emerging idea for an IACC, I was curious about how the idea for the IACC came about, why the proponents of this idea believe we need another international court, and how it would function in practice.
The Idea for the IACC and the Campaign for Its Support
The origin of the idea for an International Anti-Corruption Court can be traced back to the 2014 World Forum on Governance [x] on leveraging private capital and political action in the fight against corruption. During this conference, Judge Mark Wolf presented the concept of an IACC [xi], and later developed it further in a paper titled “The Case for an International Anti-Corruption Court”. [xii] Since then, this idea has gained support from world leaders, individuals, and civil society organizations. In 2016, Colombia became the first country to endorse the IACC. [xiii] In June 2021, Integrity Initiatives International (III) released a Declaration in Support of the Creation of an International Anti-Corruption Court, which has since been signed by 295 individuals – 46 Current and Former Heads of State and Government, 30 Nobel Laureates, and 219 Current and Former Government and Intergovernmental Organization Officials and Leaders of Civil Society, Academia, Business, and Faith Communities. [xiv] In September 2021, the Canadian Liberal and Conservative parties called for establishing the IACC [xv], and, in December 2021, Canada’s foreign minister was mandated to work with international partners to help establish an International Anti-Corruption Court. [xvi] In April 2022, the Netherlands made it a part of its foreign policy to create a coalition of countries to establish the IACC. [xvii] In November 2022, during the UNCAC Coalition’s Working Group on Grand Corruption and State Capture, Justice Richard Goldstone and Justice Maria Wilson stated that the III has formed a IACC Treaty Committee whose goal is to create and draft a statute for the IACC. [xviii] Later that same month, The Netherlands, Canada and Ecuador “hosted a ministerial conference in The Hague on international efforts to combat corruption, including discussion of how an IACC could take shape and to build international support for it”. [xix] The conference was attended by representatives of over 40 countries, as well as several international organizations and NGOs. [xx] When Judge Wolf first proposed the concept of the IACC he was optimistic that it would have strong support from the United States, [xxi] and in the past, the US had played “a considerable role in the adaptation of international and regional anticorruption law, including the United Nations Convention Against Corruption”. [xxii] However, at the ministerial conference in 2022, the United States has highlighted that it does not support the creation of a new court. [xxiii]
Nevertheless, it is clear that the IACC has political support from other countries, civil society organizations and individuals. In 2022, the proponents of the IACC laid out their arguments in a paper titled “The Progressing Proposal for An International Anti-Corruption Court”. [xxiv] This paper elaborates in detail the continuously developing idea for the creation of the IACC. It outlines the need for the creation of such a court, and how the court is envisaged to function.
Why a New Court?
The proponents of the IACC identify two main reasons for the creation of a new court: (1) grand corruption is a global problem that requires a global solution, and (2) existing anti-corruption laws and authorities are ineffective in preventing and prosecuting grand corruption. The first reason focuses on the consequences of grand corruption. According to Mark L. Wolf, Richard Goldstone and Robert I. Rotberg, grand corruption is not a victimless crime, but one with devastating human consequences. [xxv] Grand corruption leads to the loss of a significant amount of money to illicit financial flows, it contributes to climate change and prevents efforts to ameliorate it, it causes forced migration of people feeling failed states ruled by kleptocrats and contributes towards the refugee crisis, it poses a danger for international peace and security, and it threatens democracy by repressing independent journalists and civil society organizations. [xxvi] The proponents for the IACC view grand corruption not only as a problem which pollutes the international financial system, but also as a cause for many other international societal issues, and, therefore, requires a global solution. The second reason for the establishment of the IACC focuses on the lack of deterrence from and punishment for engaging in grand corruption. Even though many countries have national laws against corruption and almost all 181 state parties to the United Nations Convention against Corruption (UNCAC) have criminalized bribery, money laundering and misappropriation of national resources, kleptocrats still enjoy impunity in their own countries. [xxvii] Some states are unwilling or unable to prosecute grand corruption, either because the kleptocrats control the police, prosecutors and the courts or because the state does not have the necessary resources to conduct such a complex investigation. [xxviii] Therefore, according to the proponents for the IACC, “[t]he absence of risk of punishment, particularly imprisonment, contributes greatly to the pervasiveness and persistence of grand corruption”, [xxix] and demonstrates the need for the creation of an International Anti-Corruption Court.
How is the Court Envisaged to Function?
The International Anti-Corruption Court, if it were to be established, would be similar in its features to the already established international criminal courts and tribunals, such as the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda. In fact, many of the proposed features of the IACC draw inspiration from the Rome Statute, ICC practice and experiences. [xxx] Even though many of the Court’s proposed features are still being debated, there are five fundamental features that have been elaborated in the proposal for the IACC.
The Subject to Prosecution before 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”. [xxxi] Therefore, the IACC would also be able to prosecute private individuals who assist crimes of corruption. Moreover, by joining the IACC, a member state would agree that Heads of State or Government and other public officials would not have personal immunity or functional immunity, meaning that officials can be prosecuted for crimes of corruption before the IACC while in or after holding office. [xxxii]
Which Cases Would the IACC Prosecute?
The IACC would operate on the principle of complementarity, i.e., it would be a court of last resort. The IACC would only investigate or prosecute crimes of corruption in cases where a member state does not have the capacity and resources to do so or if the national authorities are unwilling to prosecute the individual. [xxxiii] Therefore, in this aspect, the IACC would function in the same way as the ICC, and it would be guided by the principles in Article 17 of the Rome Statute regarding issues of admissibility. [xxxiv]
Exercising Jurisdiction over 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”. [xxxv] For the IACC to be effective and serve its purpose, it must be able to prosecute kleptocrats. However, it is very likely that countries ruled by kleptocrats would not be willing to join the IACC. [xxxvi] Even so, crimes of corruption, or at least certain elements of those crimes, may be committed in several jurisdictions. For example, if a kleptocrat were to take a bribe in a nonmember state but would launder the money through the financial system of a member state, then the IACC would be able to prosecute that kleptocrat, subject to the principle of complementarity. [xxxvii]
Crimes Subject to Prosecution before the IACC
The proposal for the IACC states the court would have jurisdiction over the activities which have been established as criminal offenses by the UNCAC [xxxviii], particularly bribery, embezzlement of public funds, misappropriation of public property, money laundering, and obstruction of justice [xxxix]. What is important to note here is that the proponents for the IACC are not advocating for the creation of new laws or norms criminalizing corruption, but to build on the already existing international and domestic legal framework. [xl] They propose that the IACC could be given 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”. [xli]
The Benefits for the Victims of Grand Corruption
Last but not least, the proposal for the IACC emphasizes the importance of this court for the victims of grand corruption. The proposal states that the criminal proceeding before the IACC could result in recovery and return or repurposing of stolen assets. Not only would this create a possibility for restitution to the victimized country, but the threat of prosecution before the IACC and imprisonment could provide a powerful deterrent effect. [xlii]
Whether this proposed court will become a reality remains to be seen. The creation and effectiveness of the IACC is highly dependent on the political will to execute the idea and enable its functioning, as is the case with any international body. However, one thing remains certain, grand corruption is a problem which persistently threatens democracy, the rule of law and human rights globally. Even though there is an ongoing debate among the international community about whether the IACC is the right way to tackle this problem, there is and an agreement that tackling grand corruption warrants a more internationally coordinated approach and “an evolution in the international legal framework”. [xliii]
ii Justice Richard Goldstone is a former judge of the Constitutional Court of South Africa, former Chief Prosecutor of the United Nations’ International Criminal Tribunals for the former Yugoslavia and Rwanda, Chair of the Independent Expert Review of the International Criminal Court, Vice Chair of the Integrity Initiatives International and proponent of the proposal for the establishment of an International Anti-Corruption Court.
iii UNCAC Coalition, ‘Outlining the Proposal for an International Anti-Corruption Court’ (Blog, 5 December 2022) <https://uncaccoalition.org/outlining-the-proposal-for-an-international-anti-corruption-court/> accessed 11 February 2022.
iv Justice Maria Wilson is Justice of Appeal of the Supreme Court of Trinidad and Tobago, former Trial Lawyer at the International Criminal Court and at the International Criminal Tribunal for Rwanda, and former Assistant Director of Public Prosecution in Trinidad and Tobago.
v Ambassador Allan Rock is President Emeritus and Professor of Law at the University of Ottawa, former Minister of Justice and Attorney General of Canada, and former Canadian Ambassador to the United Nations
vi UNCAC Coalition Blog (n 3).
vii UNCAC Coalition (n 1).
viii To read more about grand corruption see Just Access, ‘Corruption in International Law: Illusions of a Grotian Moment’ (Blog, 26 July 2022) <https://just-access.de/corruption-in-international-law-illusions-of-a-grotian-moment/#_ftn3> accessed 16 February 2023.
ix Just Access (n 8).
x The World Forum on Governance is a forum which brings together representatives from the private and public sector to discuss the problem of corruption. The First World Forum on Governance took place in November 2011 in Prague, and resulted in the Prague declaration on Governance and Anti-Corruption (March, 2012).
xi Stephen M. Davis, Thomas E. Mann and Norman J. Ornstein, ‘Leveraging Private Capital and Political Action in the Fight Against Corruption – 2014 Conference Report from the World Forum on Governance’ (Brookings, 4 June 2014) <https://www.brookings.edu/research/leveraging-private-capital-and-political-action-in-the-fight-against-corruption-2014-conference-report-from-the-world-forum-on-governance/> accessed 11 February 2023.; Mark L. Wolf, ‘The Case for an International Anti-Corruption Court’ (Brookings, 23 July 2014) <https://www.brookings.edu/research/the-case-for-an-international-anti-corruption-court/> accessed 15 February 2023.; Mark L. Wolf, Richard Goldstone and Robert I. Rotberg, ‘The Progressing Proposal for An International Anti-Corruption Court’ (2022) American Academy of Arts and Sciences <https://www.amacad.org/publication/proposal-international-anti-corruption-court> accessed 11 February 2023, 5.
xii Mark L. Wolf, ‘The Case for an International Anti-Corruption Court’ (2014) Brookings <https://www.brookings.edu/wp-content/uploads/2016/06/AntiCorruptionCourtWolfFinal.pdf> accessed 11 February 2023.
xiii Wolf, Goldstone and Rotberg (n 9) 14.
xv Wolf, Goldstone and Rotberg (n 9) 14.
xvi Prime Minister of Canada Justin Trudeau, ‘Minister of Foreign Affairs Mandate Letter’ (16 December 2021) <https://pm.gc.ca/en/mandate-letters/2021/12/16/minister-foreign-affairs-mandate-letter> accessed 11 February 2023.
xvii Government of the Netherlands, ‘Netherlands says more funding needed for efforts to combat impunity worldwide’ (News, 11 April 2022) <https://www.government.nl/latest/news/2022/04/11/netherlands-says-more-funding-needed-for-efforts-to-combat-impunity-worldwide> accessed 12 February 2023.
xviii UNCAC Coalition (n 1).
xx UNCAC Coalition, ‘Do we need an International Anti-Corruption Court? – 6 December 2022’ (Newsletter, 6 December 2022) <https://mailchi.mp/uncaccoalition/06122022?e=[UNIQID> accessed 11 February 2023.
xxi Mark L. Wolf, ‘We need an international court to stamp out corruption’ (The Washington Post, 22 July 2014) <https://www.washingtonpost.com/opinions/mark-l-wolf-we-need-an-international-court-to-stamp-out-corruption/2014/07/22/a15ecc38-10ff-11e4-9285-4243a40ddc97_story.html> accessed 11 February 2023.
xxii Just Access (n 8).
xxiii UNCAC Coalition Newsletter (n 17).
xxiv Wolf, Goldstone and Rotberg (n 9).
xxv ibid 2.
xxvi ibid 2-3.
xxvii ibid 3-4.
xxix ibid 4.
xxx ibid 5-8, 10.
xxxi ibid 5.
xxxiii ibid 8.
xxxv ibid 6.
xxxvi Just Access (n 8).
xxxvii ibid 6-8.
xxxviii ibid 6.
xxxix United Nations Convention Against Corruption, Articles 15–17, 23, 25, <https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf> accessed 12 February 2023.
xl Wolf, Goldstone and Rotberg (n 9) 6.
xlii ibid 9-10.
xliii Just Access (n 8).