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The Case for an International Anti-Corruption Court




by:
James Maton
Edwards Wildman Palmer LLP - London Office

 
July 29, 2014

Previously published on July 21, 2014

Introduction

The lack of political will is undoubtedly the biggest obstacle to investigating and prosecuting corruption and to bringing proceedings to recover the proceeds of corruption. All other obstacles are secondary.

One possible solution to the problem of political will is the creation of an International Anti-Corruption Court, with the necessary powers and resources properly to tackle grand corruption free of political interference.

That possibility has been explored in a paper published by the Brookings Institution in the United States and written by Judge Mark L. Woolf, a Senior United States District Judge for the District of Massachusetts, previously Special Assistant to the United States Attorney General Edward H. and the chief federal public corruption prosecutor in Massachusetts. In that role, Judge Woolf achieved 40 consecutive convictions in public corruption cases.

In summary, the paper makes the following proposals:

  • an International Anti-Corruption Court (“IACC”) would be created
  • the IACC would be similar in scope to the International Criminal Court, or would be part of it
  • one objective would be to enforce existing criminal laws prohibiting corruption
    another would be to hear civil fraud and corruption cases brought by private whistle-blowers, with power to award damages/restitution
  • those civil cases would be made under an international civil statute similar to the United States False Claims Act
  • the IACC would also enforce undertakings under existing treaties and international organisations on corruption
  • the IACC would permit the creation and employment of “elite corps” of investigators, prosecutors and impartial/independent judges
  • the IACC would be based on the principle of complementarity - if states are genuinely willing and able to investigate and prosecute offences, this would preclude prosecution of their officials in the IACC
  • submission to the jurisdiction of the IACC would become a requirement of the United National Convention Against Corruption and a condition of membership of international organisation such as the OECD and WTO, and also a requirement for obtaining loans from international lenders like the World Bank

The justifications for the creation of an IACC are stated to be as follows:

  • international efforts to combat corruption are ineffective
  • in many countries “grand corruption” is pervasive at the highest levels of government and goes unpunished
  • the existing anti-corruption and money laundering measures are inconsistently and ineffectively enforced
  • experience in the UK has shown that governments are slow to prosecute foreign nationals without the approval and co-operation of that person’s foreign government - those with the support of their own government would therefore be unlikely to face prosecution
  • the costs of corruption is enormous and involves the expatriation of billions of dollars annually - the paper relies on estimates that $1 trillion in bribes is paid annually and that the costs of all corruption is more than 5% of the global GDP
  • grand corruption creates a political climate which fosters crime and terrorism and undermines democracy and human rights and is never a victimless crime; it should be made or recognised as criminal violations of international law
  • the resources available for successful prosecution of corruption at the national level are uneven, as is their expertise in complex financial investigations
  • few countries have jury trials for criminal cases and judges are often easier to influence by those in power
  • legislative immunities in various countries prohibit investigation unless authorised by the legislature itself; many countries prohibit undercover operations which can be essential in proving corruption and furthermore persecute those who expose official misconduct
  • threat of prosecution in IACC would give many states incentive to strengthen their own internal powers to prosecute corruption and encourage the creation of specialist national anti-corruption courts in countries where judges are often corrupt
  • prosecution in The Hague or similar location could/would be less intrusive on national sovereignty than prosecution under the FCPA or other comparable single-nation statutes
    unlike the ICC, the USA is likely to support the IACC
  • the experience of the USA should provide a model for a new international approach to combating corruption
  • in particular, the US does not rely on elected state prosecutors to deal with those that abuse their public office for private gain, but on independent federal investigators and prosecutors

The paper recognises various obstacles to the creation and success of an IACC:

  • powerful corrupt leaders and governments will continue to block investigations/prosecutions
  • few countries have an independent media and there remains the risk that journalists could be persecuted by reporting on official misconduct
  • an IACC might be seen as a violation of national sovereignty
    international human rights establishments may fear increasing attention on corruption will diffuse focus on genocide and other human rights violations
  • the performance of the International Criminal Court does not justify an expansion of its jurisdiction or emulation, as its work has been perceived to be an incredibly slow, taking more than 6 years to try its first suspect with an appeal still pending
  • further criticism of the ICC has been that it is too Africa-centric and has not brought cases involving other countries. There would be similar concerns over an IACC
  • basing the IACC on the experience of the USA and the USA’s potential strong support of the IACC may actually put off some states from supporting the court in the current political climate.

Discussion

This is a very interesting, informed and thought provoking paper which proposes a radical international solution to the indisputable fact that lack of political will so often prevents grand corruption from being investigated, prosecuted or addressed through civil claims. We make the following observations:

First, the creation of such a Court will take enormous political will and international consensus. As Judge Wolf says, “Powerful, corrupt leaders understandably do not permit the honest, energetic investigation of their friends, families, and, indeed themselves”. Equally, they may not permit the creation of an independent Court that will do so.

Secondly, there is a good case for deciding that an IACC should also have jurisdiction to deal where necessary with the companies that pay bribes and the professionals and financial institutions that knowingly assist public officials with laundering of the proceeds of corruption; or to pass evidence to the appropriate national authorities for genuine action. Expanding jurisdiction in this way will, however, inevitably be resisted by some business sectors. It may also be viewed as unwelcome competition for those law enforcement agencies that are already making substantial recoveries. However, they will also help to address any criticism that the IACC would be “too Africa-centric” and would deal only with corrupt public officials and not with those, often based in Europe and the United States, who are the makers of corrupt payments or who facilitate corrupt behaviour.

Thirdly, serious consideration ought to be given as to whether there should be an exception to the principle of complementarity to allow victim states themselves to make civil claims to recover the proceeds of corruption. There are several examples of successful civil claims by states against former public officials in foreign Courts. However, a state properly intent on a meaningful programme of cases will often have to bring claims, or enforce judgments, in multiple jurisdictions. In addition, a claimant state is typically met with allegations that its proceedings are politically motivated, and that is magnified when the proceedings are brought domestically. A recovery mechanism allowing a single claim to be brought to a reputable international Court, with any freezing injunctions and judgments easily capable of international enforcement, could be very powerful.

Fourthly, mechanisms have to be found to ensure that allegations are investigated and pursued efficiently and cases progressed to a conclusion fairly but quickly. This is particularly important in the corruption context.

Fifthly, a successful IACC must of course have the ability to recover corruptly acquired assets (with powers to freeze assets, confiscate and enforce judgment), and careful consideration will need to be given as to how recovered assets will be repatriated to victim states, and what safeguards would be necessary and acceptable to ensure that recoveries were used appropriately.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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