This guest blog by Dr. Juanita Olaya Garcia, who chairs the UNCAC Coalition’s working group on Victims of Corruption and has also previously served as Chair of the Coalition, provides an alternative view on the proposal for the creation of an international anti-corruption court.
The views expressed in guest blogs do not necessarily represent the positions of the UNCAC Coalition but are published for the purpose of prompting healthy debate. You can find here the summary of a discussion of leading proponents of the court with the UNCAC Coalition community.
6 December 2022 –
Creating an international anti-corruption court sounds like the kind of idea we wish for in a world that gets more confusing by the day. But ideas that sound good are not always the ones we need. A synopsis of the debate on this idea was provided by a U4 brief back in 2019.
With the idea of a court gaining more visibility and some political traction, I want to share a few reflections on why the creation of an international anti-corruption court is off-target and possibly even counterproductive.
In a nutshell, the arguments for the court that have been circulating for some years now go like this: corruption is rampant, corrupt leaders can act with impunity, justice systems are weak across the globe, and an international court is missing. Such a court will help do what some countries are failing at: bringing perpetrators to justice. Once that is done, we will have less corruption, especially grand corruption. It sounds like a good idea, doesn’t it?
However, so far, it is only an idea. Without a concrete tabled proposal, it is easy to agree on at the basic level. My concerns about it are straightforward and manyfold: although the idea is appealing, this is not a solution to the problem we have. As a solution, the international anti-corruption court ignores what we now know about both corruption and anti-corruption and builds on wrong (even if idealist) assumptions. At the end of the day, it is a distraction – and it occupies the international community’s time and resources that are dearly needed elsewhere.
A nice solution that won’t fix the problem
Impunity for corruption is indeed rampant. But the reasons why there is impunity are not addressed in any way by a new international court. They are made worse.
The problem with little enforcement lies not in the absence of an International Anti-Corruption Court. According to the OECD, 80% of foreign bribery cases are resolved through settlements or out-of-court agreements. Ask a prosecutor, and they will explain why: investigating and documenting corruption is very difficult. Beyond egoism and ambition, the main skill perpetrators use is the art of covering up their traces. How is an international anti-corruption court going to be any better at gathering evidence that national law-enforcement agents already struggle to find?
An international court depends on local enforcement in its operations, no matter what. Thus, the argument that an international anti-corruption court solves the problem of inaction by local enforcement authorities is at best a ‘catch 22’ scenario. The argument that justice systems are weak in some countries doesn’t make the international court any better at correcting this problem. The Comisión Internacional contra la Impunidad en Guatemala (CICIG) showcases successful cooperation between international prosecutors and national authorities, with a strong joint commitment to their mission, and could serve as a model for a more direct approach to strengthen national law enforcement.
Have we not learned anything?
Corruption is not an isolated phenomenon, particularly not for kleptocrats. So why create a specialized international court? Setting up a lofty institution to make hair-splitting exercises on what is corruption and what is not would be self-defeating.
Above all, what will happen with the consequences of corruption? We have learned that corruption fuels human rights violations, for example, by facilitating human trafficking. It enables wildlife trafficking and other environmental crimes, terrorism, and drug trafficking. It is used to cover up torture and causes forced migration. And corruption is used to avoid climate crisis mitigation. What can we gain by ignoring those damaging consequences of corruption to prosecute narrow crimes of bribery and related offenses?
Those supporting the idea of an international anti-corruption court argue that the mandate of the International Criminal Court (ICC) is too narrow to include corruption and too cumbersome to change. How is setting up a specialized international anti-corruption court any less narrow or cumbersome?
The currently proposed idea for an international anti-corruption court puts its focus on kleptocrats. It leaves out the wider networks of people that in practice sustain them – and the numerous ranks of enablers that are decisive in ensuring corrupt deals happen, let alone the myriad of straw men and sub-contractors that lend their names, their shell companies and their accounts in tax-havens to pass the money around. The court would not have jurisdiction over those. So no, you will not see McKinsey or PWC going to trial in this international anti-corruption court for their alleged role in the Dos Santos case. The lack of jurisdiction is not only because their home countries may not join the Treaty, but because the current proposal for the court has not considered how companies and the role they play in enabling and facilitating corruption would be dealt with by the court.
The idea of the international anti-corruption court is also sold by its proponents as a deterrence for the ‘bad guys’, while its actual deterrence effect needs to be examined critically. Teodoro Nguema Obiang has shown no remorse despite trials in the US, France and Spain, partly because he is able to continue enjoying his vacations in Italy, and to drive his Lamborghinis, which he recovered from Swiss courts. Also look at well-known repeat offenders – here is just one such list of US FCPA cases. Deterrence doesn’t work for kleptocrats. It works only for regular people like you and me.
More broadly, state-of-the-art thinking and behavioral approaches to corruption question the effectiveness of an emphasis on law enforcement. While we all agree that sanctions are necessary, particularly for kleptocrats and their networks, my point is that we should not be falsely comforted by a narrative of such a court saving our world from corrupt leaders. Let’s seek sanctions! But for that, we don’t need a new court, much less a new court built on old ideas of power and corruption-fighting which are part of an outdated status quo.
Prolonging a status quo that needs to change
The idea of a top-down international court is a preservation of the status quo in many ways. It resembles an outdated approach of overseas development assistance, where work at home is seen as unnecessary in order to make progress abroad. It is also good old geopolitics, a wolf dressed in sheep’s clothing.
Indeed, the basics of solid integrity promotion are missing. For all its beauty, we live in a world where citizens can’t participate in the (subsidiary) bodies of the United Nations Convention against Corruption, despite the Convention (Art. 13) recognizing their role. Even the basic minimum is missing: from the three countries currently leading discussions on the idea (Canada, the Netherlands, and Ecuador), only the Netherlands has signed the UNCAC Transparency Pledge. Why is it possible to encourage others to do better but stop short of promoting basic foundational ideals at home? With so much homework still pending in countries all over the world, I fail to understand how such a world will all of a sudden find the political drive to create an international anti-corruption court that will be able to do what its supporters promise.
Good Old Geopolitics
And yes, there is old geopolitics at work. Beyond the tricky question about jurisdiction over countries that refuse to join a court – which can be dealt with through legal technicalities – what planet is this court for without the participation of the USA, the Emirates, and China? No assets in those countries would be accessible, nor the kleptocrats or companies registered there. This means that all funds seeking shelter in Dubai, particularly after the war on Ukraine, are out of bounds for this court.
That Russia, Belarus, Iran, Pakistan, and Venezuela are unlikely to support such a measure should not come as a surprise. We tend to forget that the proposal for States to set up an international anti-corruption court happens in a world where democracy is receding, civic space is shrinking, and human rights protection is on a downturn. This strikes me as a strategy doomed for failure.
The idea of an international anti-corruption court would have worked 20 years ago, as part of the UNCAC package, in a world that was waking up to the imbalances of globalization. Instead, we got an expensive and ineffective review mechanism.
With a slight touch of superiority, the initiative inevitably looks like another effort from the West to create oversight to look down with a neo-colonial gaze on a few singled-out countries. Were we not beyond this already?
The idea of this court is ill-timed in terms of international governance. The days of governments making decisions behind closed doors are discredited. It is risky to ignore the widening gap of trust between citizens and governments. From Teheran to Kentucky, distrust is mounting. Promoters of this proposal will say civil society has been consulted and involved. And it is true, there have been a few events. Consulting civil society becomes a tick-box exercise, easily checked off after holding a few meetings, but entirely different from securing actual involvement, real multi-stakeholder deliberation, and having decision-making power. How is a court built by, and agreed on, only by governments going to build the public trust that it would need to function?
What are the alternatives?
The fact that an international anti-corruption court doesn’t already exist doesn’t mean we need it. To truly bring down corruption, countries need to deal with kleptocrats with less ambivalence. That change alone would help. The dilemmas are considerable, but turning a blind eye to corruption and human rights violations because of energy needs, national security, or economic agendas has proven counter-productive – just think of the lead-up to the Russian war on Ukraine — and should no longer be considered good diplomacy.
There is no shortage of good alternative ideas. Some of them were presented and discussed at a Preparatory Meeting for the High-Level Roundtable on Anti-Corruption earlier this year organised by Canada, Ecuador and the Netherlands in Vienna. Others are waiting for support. For example, the UNODC is surely overwhelmed with technical assistance requests from the UNCAC Review Mechanism, and which could be alleviated with some extra support. The European Parliament recommendation of 17 February 2022 on Corruption and Human Rights offers an accurate and well-linked set of actions (even if the idea of this court is mentioned there too). International justice intervention models, like the CIGIG, were impactful precisely because they relied on strong international collaboration and reinforcement from local authorities. Why not invest resources in such models, strengthening national judiciaries, and securing —for once— good international cooperation to support them?
If Canada, the Netherlands, Ecuador and other countries want to change the international landscape and be recognized for accomplishing that feat, there are other things they could push for today: secure citizen’s involvement in the UNCAC; strengthen the UNCAC review mechanism; recognize international liability of companies; enforce strong anti-kleptocracy regulations at home, and adopt genuinely transparent beneficial ownership registries. Countries can, under the premise of universal jurisdiction, bring kleptocrats and autocrats to justice and require them to respond to the consequences of their wrongdoing, including the human rights violations inflicted by corruption.
In conclusion, the concern about better, effective and consistent international action is well grounded and the intention well-placed. As the idea of an international anti-corruption court still lingers in the package of options, as it was at the High-Level Roundtable held on November 28 in The Hague, and may be among the issues considered by the EU Parliament, I hope other alternatives more fit for purpose will receive the attention they deserve.
Concerned countries would be well-advised to invest their political capital and energy in approaches that produce more immediate results. These will no doubt be more transformational than a court that may only be functional, at best, in 20 years’ time.
Guest blog by Dr. Juanita Olaya Garcia, former Chairperson of the UNCAC Coalition, and an anti-corruption expert – http://juanitaolaya-impactools.com/.
This blog represents the views of the author, it does not represent the views nor the positions of the UNCAC Coalition.