“You know the old Russian proverb. What’s mine is mine, and what’s yours is mine.” ― Daniel Silva, The Cellist
In a recent interview on BBC’s HARDtalk, the interviewee was Judge Mark L. Wolf – a Senior Judge of the United States District Court for the District of Massachusetts and Chair of the NGO Integrity Initiative International – who had initiated a proposal for the establishment of an International Anti Corruption Court (IACC) at various fora such as the 2012 St. Petersburg International Legal Forum; the 2014 World Forum on Global Governance, and in platforms such as the Brookings Institution and The Washington Post with articles in 2014. At the interview, Judge Wolf clarified that the proposed IACC would not only target corrupt leaders of countries but also any individual or entity that is allegedly guilty of kleptocracy.
In March 2019 at a discussion convened and hosted by The American Academy of Arts and Sciences and participated by a distinguished array of judges, attorneys, human rights specialists, and academics, discussions ranged from the meaning and purpose of an IACC – as to whether such a body would be able to contribute to global peace and security- to the methodology to establish an IACC. Judge Wolf was an active participant in this event as well as Robert, President Emeritus of the World Peace Foundation, Founding Director of the Program on Intrastate Conflict at the Harvard Kennedy School, and Justice Richard Goldstone, formerly of the Constitutional Court of South Africa and Chief Prosecutor at the initial United Nations International Criminal Tribunal for the former Yugoslavia.
The IACC is suggested as a punitive judicial tool to counter kleptocracy which is defined as a society or system ruled by people who use their power to steal their country’s resources. The initial problem with bringing those guilty of kleptocracy is that often they act with impunity as the institutions that are charged with countering this egregious activity are controlled by them and are therefore destitute of effectively carrying out their duties.
It is distressing that kleptocrats are everywhere in various forms of human embodiment and form a systemic threat. At the forefront are corrupt politicians who, in Justice Goldstone’s words “are abetting other compromised institutions, such as the judiciary, police, and prosecutorial offices, thereby making domestic prosecution ineffective”. The learned judge went on to opine that a supranational, neutral institution would be the last resort to hold officials accountable for their corruption and theft of resources belonging to a State in these countries to account by enforcing internationally recognized protocols against corruption.
In manner and form the proposed IACC would derive inspiration from the currently existing International Criminal Court (ICC) and have the authority to prosecute instances of grand corruption by high-level political leaders. The American Academy of Arts and Sciences in its 2019 Bulletin says: ” Just as nations that are signatories to the ICC are subject to its jurisdiction, so too would signatories to the IACC allow the Court to serve as a venue of last resort for violations of the United Nations Convention Against Corruption (UNCAC). The Court would be empowered only to bring charges when a signatory to the UNCAC did not make a good faith effort to bring charges”.
It is encouraging that there is already in effect a multilateral treaty against corruption. The UNCAC is the only legally binding international anti-corruption multilateral treaty. It was adopted by the United Nations General Assembly in October 2003 and entered into force in December 2005. However, treaties can only be enforced on States Parties who ratify them. Even if an IACC is established through a treaty, such a court would be ineffective against a non-party to the treaty establishing the court. Nonetheless, its importance cannot be understated. One alternative would be to bring the treaty into the domestic jurisdiction of a court through the Global Administrative Law (GAL) theory which posits that the administrative law type of mechanisms allow individual and national courts to be part of a checks and balances system of global governance in anti corruption. Here, global governance does not mean world governance but instead a global approach to the governance of anti corruption that requires each component system, including international, domestic and global institutions to collaborate with each other.
GAL came into existence as a theory in the first decade of the 21st Century. The importance of GAL is apparent in the current context where the world is dominated by such forces as social media through which many practice post truth, cancel culture, and fake news that can enable spin doctors and ideologues to deflect the truth about their own corruption. The GAL Project is focused on an emerging field of research and practice where administrative law-type mechanisms that address issues of transparency, participation, accountability, and review operate within the parameters of global governance.
The GAL theory posits that administrative law and its principles must be applied not as a mutually exclusive realm but in conjunction with the principles of international law and other related disciplines. Like domestic administrative law, GAL could be an amalgam of a scholarly approach or methodology and a set of actual norms, ‘practices’, or activities or mechanisms. In other words GAL would be a combination of the legal rules, principles, and institutional norms that apply to administration from a global perspective rather than a structure that demonstrate and exhibits a mere intrastate legal and political realm of authority.
GAL would be a necessary adjunct to the web of treaties that are adopted by the United Nations but unfortunately is riddled with the discretionary option that States have in being the ultimate arbiter of being bound by such agreements. Of course, the United Nations is neither the world’s judge nor its police, as Dag Hammarskjold, a Secretary General of the United Nations said: ” The UN was not created to take mankind to heaven, but to save humanity from hell”. There is something in what Judge Wolf said at the BBC interview – that an IACC would be outside the jurisdiction of the United Nations – an individual and independent body that is not established by a treaty of the UN. This principle, coupled with the infusion of GAL, could well be the basis of an IACC.