Daniel Kempken*

Versión en español aquí.

Corruption takes place across borders and causes serious damage and massive human rights violations worldwide. For this reason, arguments for the establishment of an International Anti-Corruption Court (IACC) are strengthened. A contribution to the debate on the creation of an IACC.

Corruption is far from a trivial offense without concrete victims; in fact, corruption violates human rights. The Covid 19 pandemic has made this particularly clear: When government or international aid is embezzled or diverted, the consequences can be fatal. So-called developing countries lose about ten times as much money through illicit financial flows as they receive through international development cooperation.[1] Grand corruption, also known as kleptocracy, in which high-ranking politicians abuse their position of power for their own benefit, is especially damaging.

Grand corruption is facilitated by contexts of impunity, where national law enforcement agencies and courts are unable or unwilling to hold kleptocrats accountable. In general, this is not because of a lack of necessary legislation: 181 countries are parties to the UN Convention against Corruption, which makes corresponding domestic laws binding – and in the vast majority of countries they have actually been enacted.[2]

But legislation alone is not enough. There is widespread consensus that grand corruption and related illicit financial flows are a form of international crime that cannot be countered by national measures alone.[3]

The IACC Concept

A most comprehensive model for combating grand corruption is the establishment of an International Anti-Corruption Court (IACC).[4] The fundamental features of an IACC would be complementarity and subsidiarity: the Court would only have jurisdiction if accountability options at the national level have been exhausted – that is, if national courts are unwilling or unable to prosecute corruption offenses. In this way, the concept addresses the central problem that kleptocrats are naturally not interested in fighting corruption in their countries.

The Court is supposed to close this prosecution deficit, as well as repatriate illegally obtained assets. In doing so, the IACC would apply the anti-corruption laws that are generally already in place. The main objective of the IACC is to ensure that kleptocrats can neither rely on impunity nor be certain of their ill-gotten wealth. According to criminological findings, this should also have a deterrent effect.[5] In addition, the existence of an effective international body should provide a strong incentive for reforms of national courts and law enforcement agencies.

The Campaign for an IACC

The non-governmental organization Integrity Initiatives International (III), founded in 2016 and with headquarters inBoston, USA, has explicitly set itself the goal of creating the institutional conditions for an IACC. By the end of 2022, some 300 world leaders from 80 countries have called for the establishment of an IACC in a public declaration launched by III. Among them are current and former heads of State, owners and CEOs of major corporations, policy makers for peace and security, human rights defenders, and nongovernmental organizations from Africa, Asia, the Americas, and Europe.

The Netherlands, Canada, and Ecuador are also actively promoting the establishment of the IACC, as are Timor-Leste, Nigeria and Moldova.[6] Colombia and several other countries have indicated interest at conferences.[7]

Transparency International backs flexible justice mechanisms

Transparency International has held back about embracing the idea of an IACC. In the fall of 2022, the international general assembly of more than 100 chapters of the organization decided that Transparency would give priority to regional and flexible international judicial mechanisms, as these could better respond to different circumstances worldwide than a central international court. Transparency argues that the International Criminal Court (ICC) has proven neither effective nor cost-efficient and has created regional divisions.

The ICC, which has been in place since 2002, generates costs around $160 million per year. However, it would be possible to construct the IACC more cost-effectively than the ICC. Some of the illicit assets to be recovered by the IACC can be used to fund the court. The International Anti-Corruption Coordination Centre (IACCC), established in 2017, involves Interpol and can provide input to the investigations. The IACCC can also be helpful in cases where national investigative authorities are not cooperative.

Sufficient political will?

Another argument against the IACC is that it would not be possible to generate sufficient political will for its establishment internationally. There would be no reason for countries ruled by kleptocrats to join the IACC. Powerful states like the USA, China or Russia are so far not interested.[8]

The promoters of the Court counter that the idea has enough popularity to win the support of 20 or 25 countries. This could also allay apprehensions that the establishment of an international court would be too difficult and take too long. It is necessary, however, that a coalition of the willing include international financial centers and countries where kleptocrats invest their stolen money. A court set up in this way would help to limit kleptocrats’ room to maneuver and considerably decrease the risks of grand corruption.

Existing mechanisms

Critics suggest that, instead of a new court, the focus should be placed on mechanisms and anti-corruption programs which already exist. Such possibilities include expanding the jurisdiction of the ICC or regional human rights courts, using hybrid missions such as CICIG in Guatemala or MACCIH in Honduras, or increasing support to national anti-corruption agencies and special courts.

Other possible measures include expanding sanctions against corrupt States, mutual reviews under the Anti-Corruption Convention, and greater civil society participation. Consideration could also be given to regional commissions to assist and, if necessary, provide protection to the respective national law enforcement agencies and courts. Another possibility would be to appoint a UN special rapporteur on corruption.

Discussions must be comprehensive

The approaches and programs mentioned above make sense, but they remain individual measures. Their chances of success depend on the different framework conditions, and on the political situation at the time. For example, the hybrid missions in Guatemala and Honduras were only very successful temporarily and were shuttered when political conditions changed.

Of all the initiatives and approaches mentioned here, the concept of an IACC is the most comprehensive. The corruption problem is so serious and so transnational that an international anti-corruption court would also be a powerful response from a political and symbolic point of view. It would also have greater legitimacy than sanctions issued by individual governments.

Indeed, the establishment of such a court would take some time. But in dealing with such a global problem, global approaches must be found and developed. For this reason, it would be too short-sighted to remain solely in national or regional patterns of thinking.

As corruption becomes increasingly internationalized, so must law enforcement. The international coordination processes on a possible IACC have charisma and radiant power. Thus, this debate offers a great opportunity for the fight against corruption, which could also pave the way for other meaningful approaches.

* Daniel Kempken is an independent consultant on rule of law and anti-corruption issues. From 2017 to 2019, he was head of the Governance, Democracy and Rule of Law Unit at the German Federal Ministry for Economic Cooperation and Development. He previously held various functions in German government cooperation and diplomacy.

Photo: Canva.

[1] Illicit Financial Flows from Developing Countries: 2004–2013 (Washington, D.C.: Global Financial Integrity, December 2015), https://gfintegrity.org/report/illicit-financial-flows-from-developing-countries-2004-2013/

[2] Wolf, Goldstone, Rotberg The Progressing Proposal for an International Anti-corruption Court.,, American Academy of Arts & Sciences, 2022, page 3

https://www.amacad.org/publication/proposal-international-anti-corruption-court

[3] UNGASS Political Declaration page 1: https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2FS-32%2F1&Language=E&DeviceType=Desktop&LangRequested=False

[4] Wolf, Goldstone, Rotberg The Progressing Proposal for an International Anti-corruption Court.,, American Academy of Arts & Sciences, 2022, page 3

https://www.amacad.org/publication/proposal-international-anti-corruption-court

[5] Wolf, Goldstone, Rotberg, The Progressing Proposal for an International Anti-corruption Court. American Academy of Arts & Sciences, 2022, page 10

https://www.amacad.org/publication/proposal-international-anti-corruption-court

[6] https://integrityinitiatives.org/faqs – Is the establishment of the IACC politically feasible?

[7] https://integrityinitiatives.org/faqs – Is the establishment of the IACC politically feasible?

[8] Stephenson, Schütte, An International Anti-Corruption Court? A synopsis of the debate, U4 Brief 2019:5,

page 4, https://www.u4.no/publications/an-international-anti-corruption-court-a-synopsis-of-the-debate.pdf