When global human rights activists and international affairs strategists campaigned for a new international tribunal to help to prevent future Rwandan genocides and other outrages, Canada was in the vanguard of those writing and creating the Rome Statute that established the International Criminal Court (ICC). Likewise, when a similar cohort of important parties gathered together to write and advocate for the Ottawa Treaty banning the further use of landmines, Canada took the lead. Now is the time for bipartisan Canadians to lead the world’s attack on wanton kleptocracy and free-wheeling kleptocrats by helping to establish an International Anti-Corruption Court. Appropriately, such a new court could find a good home in Canada, especially if Canada’s government embraced the idea and offered its support to other concerned nations.
Former Canadian foreign minister Lloyd Axworthy, former foreign minister, minister of justice and attorney-general Peter MacKay and former justice minister Allan Rock (who also represented Canada at the United Nations) are now among those prominent Canadian and world leaders who see virtue in a new tribunal to bring the world’s most corrupt, and hitherto impugn, leaders to justice through such an instrument. They argue for it, and for locating the Court in Canada, in the two following articles in this issue of Diplomat.
Kleptocracy and the need for a new court
Whereas corruption is the taking advantage of public office for private gain, kleptocracy, as a form of grand corruption, is the widespread illicit shifting of a state’s patrimony into private hands. Usually kleptocrats are heads of state, heads of government, or other high-ranking elected or appointed officials who are able to control who gets lucrative contracts (to construct an airport, say) or concessions (to dig for gold or drill for oil), and who receive the resulting kickbacks. Dictators, even more elected despots, get rich in this manner. So do ordinary politicians, as they did in Brazil during the multibillion-dollar Lava Jato Car Wash escapade involving a huge petroleum company and the largest contracting firm in South America. The proceeds of Lava Jato turned mere parliamentarians into kleptocrats.
Unfortunately, where there is corruption in a country, there are often kleptocrats. And where there are kleptocrats, too often there is impunity. It is impossible for domestic courts to cope with their own national kleptocratic crooks because courts are hardly independent, being paid by and controlled by the local politicians whose avarice and actions are (or should be) under investigation. Hence the desperate need for an International Anti-Corruption Court (IACC), in concept analogous to, but in function and instrumentality distinctly different from the ICC.
Judges in all jurisdictions, even the least corrupt, are sometimes swayed by political reality. Whether they adhere in minds and hearts to the impartial principles of the law, they may be moved to favour those who pay their salaries or control their preferment and promotions. Where the national executive or legislature hold the budgetary reins, where the executive interferes forcibly concerning outcomes of individual cases, and where autocrats decry the rule of law, it is exceedingly difficult, even for the bravest of judges, to exercise impartiality and obey the dictates of their judicial consciences.
The loss of judicial freedom
When and where regime corruption undermines judicial independence, forfeits obedience to an even-handed rule of law, impedes peaceful dispute resolution, undermines the credibility of contracts, takes property willy-nilly and discards due process — all on account of entrenched corruption — foreign investors and potential aid donors become wary, economic growth prospects suffer and homegrown remedies are absent or unusually difficult to implement. Furthermore, absent an affirmative judicial climate, curtailing corruption — even minimally — becomes highly unlikely.
If kleptocracy prevails and the courts are thus compromised — for whatever set of reasons and no matter to what degree — prosecuting authorities are in cahoots with the dominant domestic actors and there are no internal remedies available in any pragmatic sense, some manner of outside intervention or mediation may be required. That external oversight could come most directly in the form of a new institution, such as the proposed International Anti-Corruption Court (IACC).
Curtailing grand corruption
Any IACC-type institution would sensibly focus its energies on the curtailing of grand corruption, leaving petty corruption to be limited by domestic police systems and legal-enforcement efforts. But grand corruption of the venal kind most responsible for contract fraud, money laundering, large-scale theft from the public purse, and deleterious educational, public health and infrastructural disasters, can only be pursued and prevented by investigators and prosecutors who are loyal to an impartial institution and independent of the domestic and thoroughly implicated ruling clique. That could be an IACC authorized and legitimized by the UN General Assembly or a special convention or treaty analogous to the Rome Statute that established the International Criminal Court (ICC).
Not the ICC
The IACC, wherever it might be based, would be mandated to investigate and prosecute heads of state and other suspected senior-level kleptocrats and rulers who preside over compulsively corrupt regimes and are beyond the reach of any (beholden) domestic judicial systems. The convention or other mechanism that established and empowered such a court would stipulate whether or not an IACC would have the ability to refer kleptocrats to itself when it determined that local procedures were inadequate and whole populations were suffering. The convention might also declare that only the UN Security Council or the UN High Commissioner for Human Rights could authorize interventions absent local requests. The empowering formula might restrict the IACC’s jurisdiction only to those instances where the offending country or its offending ruler voluntarily requested the oversight and involvement of the IACC.
Complementarity, which is what this arrangement is called in international law, may prove as fundamental to the operations of an IACC as it has, unfortunately, been to the running of the ICC. (Under this formula, the nations that never ratified the Rome Statute that established the ICC are free from its attention unless and until the ICC is authorized by the UN Security Council to proceed. In the case of ex-president Omar al-Bashir in the Sudan, a non-signatory, the ICC could not investigate his alleged crimes against humanity until the Security Council gave its OK. In 2018, the ICC attempted to work around this constraint when it began to investigate the actions of Myanmar, another non-signatory, in the pursuit of alleged genocidal attacks on its Rohingya population. The ICC took the position that because Bangladesh was a signatory, and because nearly all Rohingya fled from Myanmar to Bangladesh, it could investigate.)
Alternatively, an authorizing method more effective than that created for the ICC might be found to make the operations of an IACC comprehensive and inclusive. Because frail and failing nation-states across the globe often find it difficult forensically to investigate and thoroughly follow the tortuous and devious trails that would-be kleptocrats and other venal politicians make across their own national as well as international terrains, the IACC would preferably be staffed by the kinds of trained personnel and experts that most developing countries lack. That level of capability would hence be able to assist authoritative bodies in corrupt polities that sought help in following their own local cases. Or they could employ it to recommend cases for further investigation and possible prosecution. Established IACC staff would also be able to pursue flows of ill-gotten funds across national borders, and to “follow the money” more generally. Even if its annual load of cases was few, because of jurisdictional issues, its ability to name and shame could be powerful.
The judges
The IACC’s judges could, ideally, come from any approving and ratifying country. Like the judges of the World Court, they would be chosen for their legal experience and proven quality, and because they were deemed capable of providing wise oversight to the judges of the many domestic jurisdictions wholly or partially influenced by corrupt heads of state or those court systems located within countries controlled by criminal, criminalized or kleptocratic regimes.
If the IACC had existed, for example, in important cases, it would have been able to weaken the hegemonic influence of local prosecutorial and judicial systems. An IACC investigation, authorized by the Security Council, would have had the authority to bring a despotic regime’s various kleptocrats (including someone like President Robert Mugabe in Zimbabwe) before the court for trial. In the absence of the IACC, such corrupt officials are able to avoid punishment entirely.
Exactly how the issues that would have bedeviled any attempt to follow the money in the Zimbabwe case, or in the similar cases of the Democratic Republic of Congo, Myanmar, Nigeria, or even South Africa, are resolved — when and if the IACC is constituted — will determine its success and its utility in the remaining decades of the 21st Century. There is no doubt, however, that an institution such as the IACC is much needed, and that its existence and its judicial ability to help corral and punish corrupt political leaders everywhere, plus the major searchlight on such activity that the IACC would represent, could help to chill corrupt behaviour by heads of state and their ilk everywhere.
Robert I. Rotberg is the founding director of Harvard Kennedy School’s Program on Intrastate Conflict.
