Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

http://opiniojuris.org/2014/11/25/lets-real-international-anti-corruption-court-never-work/

7 Responses

  1. My views are generally similar. I posted a critique of this proposal a few months back on the Global Anticorruption Blog, which you can find here:

    http://globalanticorruptionblog.com/2014/07/31/the-case-against-an-international-anti-corruption-court/

  2. Response…
    Corrupt officials often like to spend their ill-gotten gains abroad.how much time do the father-son obangos spend in Equatorial Guinea? Plenty of opportunity to arrest them at a chanel store abroad.

  3. Dear Julian, I share your concerns and many of the points you raise while comparing a potential International Anti-Corruption Court with the ICC. However, we should also concede that the creation of such Court would not only make a difference in the cases which it finally gets to adjudicate, but also its creation could act as a deterrent for public officials who like to travel.

    Thus, for me, the impact of these type of courts cannot only be assessed on the number of criminals it gets to try, but also by the number of potential criminals who think twice because they know that they could eventually get in trouble outside the border of their own countries. Obviously, the process of determining the number of people in the second group is much more difficult (and almost impossible) to assess. But it exists.

  4. Ku discusses the idea of International Anti-Corruption Courts modeled on the ICC. Ku goes on to acknowledge that, while theoretically possible, such an idea is unlikely to be successful as a practical matter.

    It appears as if states’ power and states’ sovereignty have much stronger foundations than the international community, particularly when it comes to issues of criminal justice. For most countries, internal integrity may mean a lot more than satisfying the wants of a nebulous international body. National governments are more likely to continue protecting corrupt officials that they haven’t prosecuted internally than they are to hand them over to some ethereal international court.

    The inability of the ICC to prevent — or even broadly deter — criminal behavior on the global scale provides support for Ku’s argument that an international Anti-Corruption Court simply wouldn’t be able to prevent or deter corruption. While the idea of joining forces with other national bodies to judicially combat corruption sounds very nice, such a court is unlikely to have the effect that any idealist would like it to.

    Perhaps there are better ways to combat corruption. Realistically, it is a problem that both developing and developed countries will have to solve internally; perhaps it’s a problem that cannot be solved at all. At any rate — and, as stated eloquently by Ku — a new, potentially grossly-ineffective international judicial body probably isn’t the answer.

  5. I concur, but would like to see the “human rights” violation angle from the US NSS, cited by Judge Wolf, developed here more. Why aren’t existing mechanisms at the UN and INTERPOL working? Merely dismissing a new body isn’t enough to address the obvious need for some reform.

  6. If anyone is interested in The Heritage Foundation’s take on an International Anti-Corruption Court, here is a link to the paper: http://www.heritage.org/research/reports/2014/10/why-the-us-should-oppose-the-creation-of-an-international-anti-corruption-court

  7. Mr. Ku, I definitely agree with a number of points that you spoke about in your article. It does seem interesting that the United States would suggest fighting corruption by creating an International Anti-Corruption Court based on the ICC. There are a number of different ways that the US and other states could go about curbing corruption within international governmental organizations. I would be interested to see how other key states feel about the possibility of adopting another court considering the international law community has quite a few already. There must be more efficient solutions to fighting corruption that do not include criminal prosecution as it can often be exceedingly difficult to retrieve government officials from either their state of nationality or another that they have fled to, like Edward Snowden. Overall, I thoroughly enjoyed reading your perspective on international anti-corruption, and I look forward to seeing how the US and other states plan on deterring this type of crime in the future.

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