Kleptocratic corruption is an acute form of grand corruption that bedevils much of the developing world and entities, such as Belarus, Brazil, and Russia. Since domestic judicial processes in places plagued with corruption — especially desperate despotisms like Angola, Burundi, the Democratic Republic of Congo, Equatorial Guinea, Honduras, Myanmar, Venezuela, and Zimbabwe — are unable to prosecute or adjudicate the excesses of their heavy-handed rulers and ruling political elites, a supra-national tribunal specializing in pursuing corrupt malefactors is needed now.
If it wasn’t obvious before, both the Panama and Pandora Papers revealed that corruption is a growing plague. An International Anti-Corruption Court — or the IACC as it could be called — would provide an important potential remedy for much of what ails the poorer and least enfranchised citizens of the world. More importantly, it could investigate, pursue, and bring to justice those who practice grand corruption, and who currently operate with impunity.
WHAT IS GRAND CORRUPTION?
Grand corruption is the large-scale theft of state privileges and opportunities for private gain. The UN Office on Drugs and Crime calls grand corruption the scourge that “pervades the highest level of national government, leading to a broad erosion of confidence in good governance, the rule of law, and economic stability.” Grand corrupters are often called kleptocrats — and kleptocracy is the widespread shifting of a state’s patrimony into private hands.
Grand corruption misdirects national policy, substituting endeavors that benefit individual leaders or small groups of associates for those squarely in the public interest. Above all, it breeds inequality that has political, economic, and cultural consequences for states. Instances of grand corruption are common in nearly all developing countries. Zambia ran up debts equal to 59% of GDP from 2005 to 2018 because the state was run by corrupt leaders who lined their own pockets. According to the Economist, much of the money Zambia borrowed was either squandered or stolen by bigwigs who skimmed off the top of million-dollar contracts.
Both the Panama and Pandora Papers revealed that corruption is a growing plague. An International Anti-Corruption Court would provide an important potential remedy for this global problem.
The most prominent example of grand corruption, however, comes from Brazil where an investigation of money laundering in a petrol station car wash (Lava Jato) led prosecutors to uncover a huge fraudulent scheme costing Brazilians billions of dollars. Directors of Petrobras, the massive national petroleum extracting and producing company, connived with Odebrecht, one of the largest construction companies in South America, to receive under-the-table payments in exchange for lucrative contracts to build offshore drilling platforms and onshore facilities and housing. Presidents, prime ministers, cabinet officials, and parliamentarians all benefited from this long-running scheme before it was uncovered in 2014 and prosecuted from 2015 through 2018, with many convictions. Meanwhile, the people of Brazil experienced a three-year-long recession.
Abundant opportunities exist in every country for those who are politically or bureaucratically in charge to abuse their public positions for vast private gain. After all, avarice never stops at the edge of a presidential palace. It is the indulgences of those at the top of the governing pyramid that sanction the grasping of others lower down the totem pole of corruption. Whole nations consequently make corruption a way of life. That process saps a nation’s resources, diverts tax and royalty payments from national to private purses, and robs ordinary citizens of school textbooks and safe cities.
TOOTHLESS ENFORCEMENT MEASURES
Corrupt politicians, officials, and businessmen run afoul of the legal instruments of their own domestic jurisdictions and are prosecuted (in some instances) in their national courts. What of those foreigners who pay lavishly and illegally for mining concessions, drilling rights, or lucrative construction contracts? Aware of these realities, in 2003, the UN enacted a Convention against Corruption (UNCAC) designed to ban corrupt behavior globally, including corporate actions. It required all UN members to repress corruption within their borders and to return monies laundered (“stolen”) back to the appropriate nations. As of today, 178 states have ratified the ban.
UNCAC, however, is toothless, as is the global industrial powers’ Organization for Economic Cooperation and Development’s (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In 1997, the Convention declared that bribery is harmful to the international “battle against corruption.” The Convention asked states to pass their own laws criminalizing the bribing of host country nationals to reduce the insidious nature of supply-side corruption, and to do so forcefully even when bribes are solicited. Yet, in both the UNCAC ban and the Convention’s request, there is nothing other than shame and risks to reputation to dissuade potential corporate offenders from adding illicit inducements to any deals sought between multinational corporations and home-based developing world leaders. As it turns out, kleptocrats care little about the reputational costs, especially in countries where corruption is a way of life.
The ultimate arbiter of all of these attempts to curtail the supply-side of bribery is the US Foreign Corrupt Practices Act (FCPA). The FCPA makes it illegal for any publicly traded concern (and their officers and employees) to pay foreign government officials to obtain or retain business. This prohibition has been interpreted very broadly to apply to US persons and corporations, to nominally foreign firms that bank or issue securities in the US, and to concerns that employ the US banking system. The UK, Canada, the Netherlands, Germany, and France all police corporate corruption overseas, but all of these worthy efforts hardly hinder kleptocratic accumulation or domestic political impunity. In other words, grand corruption still thrives.
A NEW COURT
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 — then 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 as in Ghana, Zimbabwe, and dozens of additional countries. This is why an IACC is needed.
An IACC, therefore, would focus its energies on the curtailing of grand corruption, leaving petty corruption to be limited by domestic police systems, and in-country legal enforcement efforts. Grand corruption of the venal kind most responsible for contract fraud, money laundering, large scale theft from public purses, 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 independent of domestic and tainted ruling cliques — thus the need for an IACC.
A new IACC could be authorized and legitimized by the UN General Assembly or via a special convention or treaty analogous to the Rome Statute that established the International Criminal Court (ICC). More than 125 former national presidents, foreign ministers, Nobel Laureates, supreme court justices, and other eminent global persons recently signed an official Declaration in favor of the IACC.
WHAT THE IACC WOULD LOOK LIKE
The IACC, wherever it might be based, would be mandated to investigate and prosecute heads of state and other suspected senior-level kleptocrats and rent-accumulating 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 empowering formula usually provided for a new international instrument such as the IACC would in the first instance include only states that signed on to the original organizing statute. Many would do so to align themselves with the global movement against corruption. Others would wait to see if countries with which their own states wanted to be allied joined up. For non-signees (such as Sudan and Zimbabwe for the ICC), the IACC’s founding document would need to include another method of authorizing IACC intervention. The ICC uses the UN Security Council. The originators of the IACC could employ that method (risking vetoes) or they could devise some other internationally acceptable method of giving the new court oversight in exceptional circumstances.
The ICC investigates crimes against humanity based on press reports or civil society complaints issued from endangered countries. Then its prosecutors recommend indictments to presiding justices. The IACC would do the same for venal corruption, employing experienced financial investigators. Since frail and failing states across the globe often find it difficult to forensically investigate and thoroughly follow the varied trails that would-be kleptocrats and other venal politicians make across various terrains, the IACC would be staffed by the kinds of trained personnel and experts that most developing countries lack. They could then summon miscreants before the new court.
The IACC’s member-states would allow the court’s staff to operate in their countries freely. They would assist anti-corrupt investigations in corrupt polities seeking help in following their own local cases and recommending cases for possible prosecution. 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 the IACC’s annual load of big cases were few, because of jurisdictional issues, its ability to name and shame could prove powerful, especially if the quality of its prosecutors and judges — persons of impeccable integrity — demonstrated high levels of moral authority.
The IACC could pay for itself by confiscating corrupt assets, wherever they might be found. Alternatively, corrupt proceeds could be returned to the nation from which they came if kleptocracy had been ended. In that case, the UN or a set of donor countries would need to support the workings of the IACC financially.
The IACC’s judges could, ideally, come from any approving and ratifying country. Similar to ICC judges, 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 court systems located within countries controlled by criminal, criminalized, or kleptocratic regimes. A high order of judicial integrity would be required.
Could an IACC be more effective than the ICC? An IACC could be run more leanly from the start, with less overhead and more prosecutorial and jurisprudential acumen. There are lessons to be learned from the drawn-out experiences of the ICC that could benefit an IACC, and strengthen its credibility. For example, the ICC has been accused of targeting African leaders and poorer parts of the world, rather than going after leaders of developed and Western countries who may have committed war crimes. The IACC could avoid this charge if, from its inception, the IACC chose its cases wisely. After all, corruption is everywhere and kleptocratic excesses, unlike war crimes, are not confined to the poorer parts of the world.
A STEP IN THE RIGHT DIRECTION
If the IACC had existed during the time of dictatorial president Robert Mugabe of Zimbabwe (1980-2017), for example, it would have had the authority under a UN Security Council mandate to bring him and his despotic regime’s various kleptocrats before the court for trial. In the absence of an IACC, complicit officials in wildly corrupt countries today like Cambodia, the Democratic Republic of Congo, Ecuador, Peru, and South Sudan are largely able to avoid being held accountable. So are Russians, Italians, Americans, and even Britons.
A tightly run IACC could curtail grand corruption and help the peoples of much of the world regain lost livelihoods and political voice. With grand corruption thus reduced, their real needs, not the aggregating preferences of kleptocrats, would be met. An IACC promises to improve outcomes for the world’s poor and deprived. It is a new institution whose utility is apparent and whose time has come.
Robert I. Rotberg was professor of history and politics at MIT and professor of public policy at the Harvard Kennedy School. He is president emeritus of the World Peace Foundation. His books on corruption include Anticorruption (2020) and The Corruption Cure (2017), as well as edited books on corruption in Latin America and Canada.
