Prof. Robert I. Rotberg - Why an International Anti-Corruption Court?

Because corrupt countries usually endure corrupt judiciaries (South Africa and Brazil are exceptions), and because prosecuting perpetrators of venal or grand corruption is often an exercise in futility within corrupted jurisdictions, some loftier or transcending method of bringing high-level miscreants to justice could be salutary. The establishment of an International Anti-Corruption Court (IACC) to fulfill those needs thus makes eminently good sense. It is an idea whose time has finally come.

An IACC would, by arresting, trying, and punishing corrupt high-level offenders across the globe, help to reduce the kinds of impunity that prevail within corrupt nations, and correspondingly deter venal corruption. The existence of such a new international institution would bring increased attention and notoriety to the excesses of corrupt endeavors and to kleptocracy more generally. It would also confer international legitimacy (presumably via support from the UN General Assembly) on anticorruption efforts that many national court systems often lack. Furthermore, an IACC could receive confidential reports from NGOs, individuals, whistleblowers, etc., within corrupt countries in a manner that is often unavailable or dangerous within jurisdictions awash with corrupt dealings.

As conceived, the IACC would focus its energies on venal or grand corruption—the large-scale theft or conversion of public riches to private gain. It would not focus on the equally insidious and destructive petty corruption that bedevils citizens almost everywhere, especially in the polities of the developing world.

The new court would investigate and seek to prosecute, for example, heads of state who arrogantly preside over schemes to enrich themselves, their families and lineages, and their cronies. It would be less concerned about pursuing workers in motor vehicle offices, say, who provide fake licenses for a fee, or policemen who accept bribes at roadblocks. Such a court’s main targets would be the Eduardo dos Santoses, Robert Mugabes, and Joseph Kabilas of the developing world – presidents whose kleptocratic avarice knows no bounds and whose judiciaries are thoroughly under executive control.  The court might also be invited to play a role in supporting a Malawi or a Honduras where local prosecutorial resources are limited.  Or a country such as Brazil could even request the support and even-handed impartiality of the new court when its own court processes had become too politicized.

The IACC would be composed of internationally approved and internationally experienced judges. They would not be beholden to national political elites for appointment or for their salaries. (Who would pay for the IACC is an open, and difficult, question.) They would draw on the expertise of the kinds and numbers of investigative and prosecutorial staff that most developing countries lack. Fragile and poorer places in Africa and Asia often find it difficult forensically to pursue the tortuous trails of corrupt politicians, especially those with highly placed friends. Most smaller countries also lack the means to track the shifting of ill-gotten funds across oceans and continents. The proposed court, to function well, would need its own regular leakers of information similar to that brought to light in the Panama Papers.

The world order’s need for an IACC, and the complementary benefit that an IACC could bring to help uplift millions of citizens who are regularly deprived of developmental advances by corruption and corrupt leaders was first articulated by Judge Mark L. Wolf in 2014. Subsequently, that idea has been embraced by jurists, scholars, human rights advocates, and UN officials internationally, as well as by prominent global NGOs, and by officials from such nations as Nigeria and Ukraine. An NGO, the International Integrity Initiative (of which I am a director and supporter), has been established to promote and bring into being an IACC. But no matter how innovative and timely an IACC may appear to be, a successful launch of an IACC will require substantial support from a range of major and minor world powers—and ultimately from a groundswell of influential public opinion and from an authorizing body such as the UN General Assembly. That approach follows the successful establishment of such important normative-shifting initiatives as the International Campaign to Ban Landmines and the adoption of the Responsibility to Protect initiative by the UN General Assembly in 2005.

The International Criminal Court (ICC) is obviously an analogue. Many of its procedures might be embodied in the statutes or protocols that eventually establish an IACC. One, complementarity, seems just as fundamental to the IACC’s function as it is to the ICC. That is, the IACC would attempt to assume jurisdiction only when and where the corrupt countries themselves refused or otherwise forfeited their rights as the original jurisdiction to investigate and then to prosecute malefactors. (The nations that never ratified the Rome Statute that created the ICC are immune from its attention except when specifically authorized by the UN Security Council.) The IACC would need some similar method of imposing itself on those countries failing to ratify the IACC’s enabling statute and thus barring its investigations.

Exactly how all of these issues are addressed will help to determine the ultimate success of the IACC. There is no doubt, however, that an IACC is much needed, and that its existence and its ability to punish corrupt offenders, plus the threat of so doing, will help to chill corrupt activity worldwide.

With some added fresh material, this blog post is adapted from a section in Robert I. Rotberg, The Corruption Cure: How Leaders and Citizens Can Combat Graft(Princeton, 2017).

Prof. Robert I. Rotberg is the Founding Director of the Harvard Kennedy School’s Program on Intrastate Conflict, President Emeritus of the World Peace Foundation, Fellow of the American Academy of Arts and Sciences, and sometime Academic Vice-President of Tufts University and President of Lafayette College. He currently serves as the Fulbright Distinguished Professor of International Relations at the University of Sao Paulo. He has published a number of books and articles. His latest, The Corruption Cure: How Leaders and Citizens Can Combat Graft, is published by Princeton University Press in early 2017.