Establishing a new International Anti-Corruption Court

Presentation to American Academy of Social Sciences Exploratory Meeting on Checking Kleptocracy: Creating a New Instrument of World Order, Cambridge MA, 21 May 2022

How do we get to where we all – or at least most of us - want to go? I assume for present purposes we are in general – if not universal – agreement that:

• we want to establish a new international court as the centrepiece (if not the whole) response to the problem of grand corruption
• we want that court to have the authority to prosecute present - and former – heads of state and government, and senior officials, and anyone who assists them in committing kleptocracy and laundering its proceeds, but
• we know there is no realistic way in which such a court could be established through the UN Convention Against Corruption mechanism or any other UN treaty-making forum, or by expanding the International Criminal Court’s jurisdiction, given the number of member states of both with highly problematic corruption records.

In starting afresh, as we must, the good news is that there is already an effective international campaign under way, led by the convenors of this meeting and Integrity Initiatives International which is beginning to touch all the right bases, and that it starts with two huge advantages over comparable campaigns in recent decades with which most of us are familiar, and with many of which I have been personally involved.

The first great advantage with which the IACC campaign starts is that it does not in any way depend for its success on universal, or close to universal, take-up. With the support of only twenty-five or so countries, the bans on land mines and cluster bombs could never have been remotely effective; so too with the establishment of the International Criminal Court. We know that states with kleptocratic leaders are wholly unlikely to either join the court or enforce its decisions. But provided the founding participants in the establishment of the IACC include a significant number of centres that really matter when it comes to harbouring kleptocrat assets and facilitating their acquisition and enjoyment – in Europe, North America and Asia, and hopefully in Africa and Latin America as well – then the campaign will have been very successful indeed.

Big financial centres like the UK will be crucial, although we do have to acknowledge that in the case of the United States it will be a labour of Hercules, in the present and likely continuing toxic political environment, to persuade any policymakers to change their solipsistic stripes when it comes to embracing any new international institution the US cannot effectively control. But many relatively smaller players, like my own country, are still potentially significant members: in Australia’s case, for example, there are more than a few kleptocrats, notably from Cambodia, who are believed to have parked assets there. Obviously the more such member countries we have, the more appropriately miserable will kleptocrats’ s lives be. But there don’t need to be an army of members to make a difference.

The second great advantages with which this campaign starts is that there is already a clear and unequivocal global norm against grand corruption. It may not yet be a rule of customary international law, but it is a norm. And it is a norm which does not have to be newly created¸ as was the case with the ultimately successful campaigns against landmines and cluster bombs led respectively by Canada and Norway; the campaign to win recognition for the norm of the Responsibility to Protect against mass atrocity crimes; and the campaign initiated by the Nobel Prize-winning NGO, ICAN, which has borne fruit with the Treaty on the Prohibition of Nuclear Weapons (albeit still not winning any buy-in at all from the countries that matter most, the nuclear-armed states and those like my own who are still in love with nuclear deterrence).

True it is that in far too many states party to the UN Convention Against Corruption –probably as many as two-thirds of them – pay no more than lip-service is paid to the norm against grand corruption. But nowhere does one ever hear anyone shameless enough to declare that such corruption is in any way defensible in principle. And that’s a start.

So how should the campaign now getting under way be focused, to maximise its chances of success with the countries that need to be targeted?

The first requirement is to have a clearly articulated and easily communicable objective. That means in our case having a draft treaty prepared which – however much its text might evolve as negotiations advance – leaves no doubt as to the kind of court we are trying to create, the reason for creating it, the laws it will apply and how it will apply them. I think that means clearly articulating a list of the crimes to be enforced - using the language of the UNCAC treaty as a starting point – while making provision for the retrospective application of those laws by the delegation to the court of domestic law in that respect by all those states willing to do so.

The other big campaign requirement is to have a clear advocacy strategy for the implementation of your objective. Any major policy change, and certainly any change involving the creation of new institutions, comes down to generating the necessary political will to act by the relevant policymakers. Whether the context is domestic or international, political will is never something that sits there in a cupboard waiting to be found: it has to be persistently and relentlessly worked for.

In generating that political will, the efforts of supportive NGOs in sensitising governments to the issues will, as always, be important. But I think we have to recognise that given the nature of the issues involved here, effective campaigning for an IACC is never going to be able to depend on mass bottom-up mobilisation, however energetic the efforts of those NGOs might be. In this case it is going to have to be based essentially on peer group pressure, with the right kinds of argument being persuasively made to the right people, at the right levels of the relevant decision-making food chains, by those to whom they will listen.

The arguments in question of course need to be strongly evidentially based and not just asserted. In my experience, for what it’s worth, they need to touch at least four different bases: moral, national interest, financial and domestic political.

As to moral arguments, it helps a great deal in this context that there is, as I have said, already a well-established international norm applicable to the behaviour in question. However base and self-interested their actual motives may be, governments always like to be seen – both internally and internationally – as acting from higher motives. Preventing human loss and misery, of the kind that grand corruption can certainly generate, and protecting the democratic principles that grand corruption so obviously undermine, can act as both an inspiring and a legitimising motive in almost any political context.

National interest arguments, if they can plausibly be made, are usually the easiest way to woo government decision-makers. National interests are usually thought of as falling into just two categories – economic interests and security interests – and there are arguments that can be made in both these contexts. In economic terms national businesses crave a level playing field internationally, in which their competitors cannot win contracts through bribery. And in security terms corruption-supported terrorism, for example, or accommodation of rival powers’ potentially aggressive defence interests, continue to be of practical concern.

But there is another argument which I like even better in this context, and that is that doing the right thing when it comes to global and regional public goods – being, and being seen to be, what I like to call a ‘good international citizen’ – is itself a national interest, deserving to be ranked alongside the traditional duo of economic and security interests. Acting decently when it comes to aid, support for human rights, response to atrocities, peacemaking and peacekeeping, and the like – and also, I would argue, ridding the world of grand corruption – is on this view not just a moral imperative, but behaviour that generates hard-headed national interest returns, above all reputationally, or in terms of a country’s ‘soft power’.

Financial arguments always matter to government bean-counters, and here it will be important to establish – as can I think be relatively easily done – that the start-up cost of the IACC will be relatively modest for each of the participating states, and that over time there may well be a reasonable prospect of it paying for itself through financial penalties imposed on kleptocrats and their facilitators.

Domestic political arguments should not be especially relevant here, but can never be entirely ignored. Governments always have to have arguments that will appeal to, or at least not alienate, their own political support base; and that they that they can use to deflate, or at least defend against, the attacks of their political opponents. Supplying them has to be part of the campaigner’s repertoire, and that should not be too difficult given the moral and national interest attractions of supporting the new court.

The exception here is probably the always exceptionalist United States, given its likely lack of susceptibility to any of these arguments: for grand corruption to be effectively tackled there has to be strong measures against not just those paying the bribers (which is the case under present US law) but those taking them. That said, it is worth remembering that the Magnitsky Act, which included broad anti-corruption sanctions against kleptocrats themselves – albeit not involving the creation of any new international institution – was passed by a very polarised US Congress, and is an example of what can happen when the right kinds of arguments reach the right individuals at the right time.

In advancing the cause, I think the strategy of holding meetings like this one, to round out and shape in ever more carefully-argued detail the case for an IACC, is exactly the right one. I fear that it may be a little premature – until we have fully settled on the detailed court model we want to advocate – to be having the big diplomatic conclave the Dutch and Canadian governments are planning for next month – but I guess that die is now cast.

My own preference for the next organizational stage, and we can still do this, would be, with Canadian and Netherlands government and hopefully other sponsors’ support, embarking on an international road show targeted at key decision makers. I have in mind in this respect the example of the Canadian-government sponsored (and Lloyd Axworthy personally-initiated) International Commission on Intervention and State Sovereignty, which I had the honour of co-chairing and which in our 2001 report introduced the concept of the Responsibility to Protect against mass atrocity crimes.

To stimulate debate and generate interest and support, that Commission conducted around the world, over the course of just seven months, eleven regional roundtables and national consultations – with strong participation each time from both regional governments and civil society – in Ottawa, Geneva, London, Maputo, Washington DC, Santiago, Paris, New Delhi, Beijing and St Petersburg. While the target locations would need to be reconsidered – St Petersburg, for one, in the present environment – I would certainly suggest considering that general template. With the feedback from those meetings we will not only be able to refine and improve the draft treaty as necessary, but identify the countries most worth targeting, in the first instance, as negotiating partners in getting the court off the ground.

Nobody pretends that establishing an International Anti-Corruption Court will be an easy, straightforward or quick process, or that it will be a complete answer to the scourge of kleptocracy. Efforts to strengthen cultures of accountability within those countries most affected will obviously have to continue. But the enterprise is off to a strong start, and its successful realization will be a quintessential example of good international citizenship, and a striking blow for decency in global governance.