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Does the world need an International Criminal Court for prosecuting grand corruption?

Does the world need an International Criminal Court for prosecuting grand corruption?

The Organization for Economic Cooperation and Development (OECD) estimates in a 2013 report that child mortality rates in countries with high levels of corruption are about one third higher than in countries with low corruption, and infant mortality rates are almost twice as high. When officials use their positions for private gain – such as awarding concessions for the extraction of natural resources based on cronyism or accepting multi-million dollar bribes to maintain slack border regulations – entire nations sink into desolation. Instead of a transparent and safe environment for all citizens, public services deteriorate and everyday people are left open to exploitation. By stealing their nations’ resources and using their authority to gain personal wealth, corrupt governments are not only committing fraud – they are reaping suffering, hunger, disease, and even death among the citizens of their country.

Do such egregious human rights abuses require international action? When corruption is carried out by heads of state and their close associates, it is often endemic to every public institution in a country, leaving citizens with no recourse. Dictators, Presidents-for-Life, Kings, and even democratically elected leaders are free to operate with impunity.

One of the principal debates raging within the anti-corruption community centers around the idea of an international court to prosecute ‘grand corruption,’ defined as state leaders and politicians misusing their authority to sustain their power, status, and wealth. These are the Frederick Chilubas, Robert Mugabes, and Muamar Qaddafis of the world – heads of state and their colleagues in the upper echelons of government or business (often both) who amass vast fortunes via their control over national resources, government contracts, and state revenues. Such an anti-corruption court would provide an international mechanism for bringing these otherwise immune individuals to justice – a global watchdog to defend the citizen victims of these enormous and unconscionable crimes.

The argument for such a court has prominent proponents and detractors alike, all anti-corruption experts who agree on the need but not the means to tackle the grotesque amount of graft emanating from some of the highest offices in the world. Most notably, U.S. District Judge Mark Wolf and Executive Director of Not in My Country Roey Rosenblith, who support the initiative, find themselves at odds with Harvard Law’s Matthew Stephenson and Northwestern’s Karen Alter and Juliet Sorensen. Judge Wolf, while not the first to propose such a court, has crystallized the idea into a working proposal that envisions an entirely new and independent International Anti-Corruption Court (IACC) modeled after the International Criminal Court (ICC). Among other mechanisms to ensure the initiative’s success, Wolf recommends making World Bank loans as well as membership of international organizations like the OECD and WTO open only to signatories of this Court.

Critics argue that the ineffectiveness of the ICC makes it a poor model for a new international court. Linking participation in the court to membership in key international institutions could pose an even bigger problem, potentially leading major international players like the United States, India, Russia, China, and Brazil to oppose the court, while many corrupt leaders would readily forego World Bank financing and other benefits to protect themselves and their personal corruption networks. Indeed, it is hard to imagine dictators who have spent decades corruptly accumulating wealth and power to join to an international court that could potentially take it all away — regardless of the level of pressure to do so or the consequences of refusing.

Another important objection stems from concern that such a court would be biased against less powerful developing countries. Just as the ICC has disproportionately prosecuted African leaders, an IACC would inevitably tackle grand corruption in developing states first, and perhaps solely. Even if the United States, China, and Russia were to join, the Court may, in an effort to prove its worth, prioritize actions against “low hanging fruit” in its first years –- focusing on corrupt officials in Africa, the Middle East, and Southeast Asia rather than those in more powerful and wealthy countries. While it’s true that grand corruption is generally more prevalent in the developing world, richer countries are certainly not immune, and the appearance of bias from the court could rapidly erode its legitimacy.

Rosenblith has spent countless hours advocating for the creation of an IACC, bringing the issue to relevant conferences around Washington, meeting with experts and government officials to generate traction, and throwing the full weight of his organization behind the initiative. He counters each of the above criticisms.

For one, the United States would, Rosenblith and Wolf agree, support and become a signatory to an IACC. The U.S. already participates in a host of binding international mechanisms including the World Trade Organization, the International Center for Investment Disputes, the UN Maritime court, and other organizations, treaties, and agreements that require a certain surrender of sovereignty. And, Wolf argues, the U.S. has already established a strong track record of prosecuting public and private corruption within its own judicial system. Grand corruption abroad seriously harms U.S. business interests and makes U.S. companies less competitive against peers who are not bound by anti-corruption legislation. Take oil concessions, for example: in countries where heads of state and oil ministers demand bribes in order to secure rights to drilling and extraction, U.S. companies, operating under the Foreign Corrupt Practices Act (FCPA), are at a distinct disadvantage to companies from countries where anti-bribery provisions don’t exist or are not strongly enforced.

Still, Stephenson suggests a number of ways that an IACC could “actually prove counterproductive” – eroding the international norm against anti-corruption, emboldening some leaders to resist other forms of pressure to clean up their acts, and possibly triggering a backlash among citizens who resent the court’s intrusiveness or perceived bias towards the Global South. He goes on to consider the risks that those countries who remain outside the IACC will face if they are indeed cut off from international engagement: if a corrupt leader ends up withdrawing from the WTO and the World Bank rather than face potential prosecution in the IACC, average citizens could suffer even further harm.

While there may be technical – or even theoretical – reasons that Wolf’s plan for an international corruption court cannot be realized, the conversation itself is still valuable. Wolf very soundly connects corruption to human rights, arguing that grand corruption “destroys democracy and devastates human rights that governments are constituted to protect.” In an environment governed by networks of patronage rather than equality under the law, access to courts and legal enforcement is limited to the lucky minority privy to channels of power. The suffering, exploitation, degradation, and helplessness that follow for the rest of the population are gross violations of internationally agreed upon human rights.

Rosinblith says that “people who are serious scholars of the problem of corruption – who have stopped and taken a hard look at it – definitely understand the massive human rights crisis” incorporated therein. Yet many others still consider corruption to be a victimless crime. Besides, as Rosinblith emphasizes, it is one thing understanding a concept on a theoretical sense and another thing entirely to live with it, knowing that it is your future and the future of your children. Human suffering is one aspect of corruption that practitioners – lawyers, judges, and technocrats who deal in legalese and statutes more often than human interaction – are often unable to adequately articulate. By raising the issue to the international trial setting (the third and final stage in the development of international criminal law, according to scholar Serge Sur), the idea of the IACC re-centers the conversation, forcing us to consider the human cost of tolerating this abuse of power that affects people in very real, sometimes violent and bloody, ways.

So what is the answer? Should nations be left to deal with their own corruption problems – the current model, which has failed to do much to stem grand corruption? Should billions be spent to create an IACC that would at best be moderately effective, or maybe even counterproductive? There is a third option being discussed in the same anti-corruption circles – one that still doesn’t enjoy unanimous support but bridges some of the gaps between the sides.

Instead of creating an entirely new court, legal experts including University of Michigan Law Professor Sonja Starr have suggested an expansion of the existing ICC’s jurisdiction to include grand corruption. Abdul Tejan-Cole points out that grand corruption could be incorporated into the International Criminal Court’s already existing mandate to prosecute the perpetrators of crimes against humanity, specifically those who commit “other inhumane acts.” Under this definition, some argue, The Hague already has the power to bring criminal charges against leaders who abuse their people for personal gain. As FCPA Blog Editor Richard Cassin so clearly notes, “what other criminal activity creates more global victims than grand corruption?”

There are ample reasons to consider a legal anti-corruption mechanism that transcends state borders: the flow of capital that emanates from grand corruption is global, and victims of such high-level fraud are absolutely powerless within their own legal systems. Whatever method is used, the international community cannot continue to stand by and act as though this is a victimless crime when in fact it harms more people in more ways than statistics can possibly capture. The process will be flawed, as the first decade of the ICC’s existence has already proven, but, as Cassin writes, “nothing can happen until the effort begins.”

Sarah Ali is a Program Assistant for the Middle East & North Africa at CIPE.