Mark L. Wolf is a senior U.S. district judge for the District of Massachusetts. He was a special assistant to the U.S. attorney general from 1975 to 1977 and the chief federal public corruption prosecutor in Massachusetts from 1981 to 1985. This piece is condensed from an article published by the Brookings Institution.
It was hard to miss Daria at the World Forum on Governance in Prague in April. The 28-year-old lawyer and mother from Kiev was wearing a “Ukraine: [expletive] Corruption” T-shirt. Such a frank message was understandable. Indignation at “grand corruption” — the abuse of public office for personal profit by a nation’s leaders — inspired Daria and many others to risk their lives in the Maidan protests that toppled President Viktor Yanukovych in February.
In too many nations, corruption is endemic at the highest levels of government. Then-U.N. Secretary General Kofi Annan was correct in characterizing such behavior as an “insidious plague” in his 2003 statement upon the adoption of the U.N. Convention Against Corruption.
Corruption is extraordinarily costly, consuming more than 5 percent of the global gross domestic product. Developing regions lose more than 10 times in illicit financial flows than what they receive in foreign aid. Russia’s corruption-fueled “shadow economy” makes up an estimated 44 percent of its GDP.
Corrupt governments also often provide havens for international criminals, including drug lords in Mexico and terrorists in countries such as Afghanistan and Yemen.
Nevertheless, the most serious consequence of grand corruption is that it destroys democracy and devastates the human rights that governments are constituted to protect. Countries recognized as among the world’s most corrupt — including Somalia, Afghanistan, Sudan, Iraq and Syria — repeatedly violate the human rights of their citizens. The poor and powerless are victims of corrupt regimes throughout the world.
As Ukraine and Egypt exemplify, opposition to grand corruption is destabilizing many countries and, indeed, the world. International efforts to combat grand corruption have obviously been inadequate. Similar circumstances concerning the evils of genocide and other intolerable human rights abuses led to the creation of the International Criminal Court (ICC) in 2002. An International Anti-Corruption Court (IACC) is now equally necessary.
Grand corruption depends on the culture of impunity that exists in many nations. An IACC would provide an alternative and effective forum for the enforcement of the laws criminalizing grand corruption that exist in virtually every country, while giving force to the requirements of treaties such as the U.N. Convention Against Corruption and the obligations of organizations such as the World Trade Organization. Like the ICC, an IACC would operate on the principle of complementarity, meaning that only officials from those countries unable or unwilling to prosecute grand corruption properly would be subject to prosecution. This would give many nations a significant incentive to strengthen and demonstrate their capacity to combat grand corruption.
An IACC would be comparable to the approach that has served the United States well. In the United States, we do not depend on elected state prosecutors to address corruption by state and local officials because such prosecutors are often part of the political establishment they would be called upon to police and, in any event, generally lack the necessary legal authority and resources. Instead, we rely primarily on federal investigators, prosecutors and courts to deal with corrupt state and local officials.
Similarly, an IACC would employ an elite corps of investigators expert at unraveling complex financial transactions and prosecutors experienced in preparing and presenting complicated cases. It would also include experienced, impartial international judges.
The IACC’s impact would be enhanced if, like federal courts in the United States, it were also empowered to hear civil fraud and corruption cases. An international “whistleblower” statute enforceable at the IACC would increase the resources that would be devoted to combating fraud and corruption and enhance the potential for restitution for victims.
Notably, an IACC should have strong support from the United States. U.S. companies generally behave ethically and, in addition, are significantly deterred from paying bribes by the threat of prosecution for violating the Foreign Corrupt Practices Act. They would benefit from the more level playing field an IACC would create.
Finally, an IACC would provide the potential for more effective prosecution and punishment of corrupt officials who commonly abuse human rights. Fraud, corruption and associated money laundering can often be proved based on documentary evidence, which is easier to acquire than eyewitness testimony of victims of human rights abuses, who are unlikely to have knowledge of the criminal responsibility of their nation’s leaders.
There are practical impediments to establishing an International Anti-Corruption Court and principled concerns to be addressed. But the status quo is intolerable. An IACC could erode the widespread culture of impunity, contribute to creating conditions conducive to the democratic election of honest officials in countries with a history of grand corruption and honor the courageous efforts of the many people, like Daria, who are exposing and opposing corruption at great personal peril.
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