Former UK Labor government minister and now Peer Peter Hain recently urged the UK to back the creation of an international anti-corruption court (IACC). Lord Hain suggested that the proposed court would run analogous to the International Criminal Court in the Hague, allowing for the prosecution of corrupt heads of state.
His call is a noble one. The problem with kleptocracy is that very few countries have the mechanisms to deal with it effectively. Captured states are not able to pursue the wrongdoers who have captured them. This lack of deterrent is at the root of most prolific crimes. Corruption is no different.
If an IACC with the power to investigate and prosecute grand corruption is to be established, then it must be able to punish those responsible. Otherwise, it will be a toothless tiger. This is where Lord Hain’s notion may have its limitations.
If the IACC deals with U.S. nationals, for example, it may have support from the U.S. government (although, notably, the United States does not recognize the jurisdiction of the International Criminal Court, which was set up in 2002 to prosecute war criminals). However, it is unlikely that the U.S. would need to do so, as it has its anti-corruption legislation and the wherewithal to enforce it.
Elsewhere, the new court can anticipate minimal cooperation. If the IACC proceeds to remotely prosecute a rogue state’s leadership in their absence and delivers a guilty verdict, what then? What punishment awaits those convicted? Do you sanction the state? If so, those who will suffer most from sanctions will likely be ordinary citizens (who may already suffer under the collective effects of kleptocracy).
Alternatively, you could perhaps consider issuing an Interpol Red notice against the corrupt individuals. Yet even if these individuals left their jurisdictions and were detained elsewhere, the court would need to contend with the political wrangling surrounding extradition requests. The notion of whether an international court can impact and deter corruption must be considered in this context.
I support any idea that may deter corruption. But if the new IACC is to run analogous to the International Criminal Court, then we only need to look at the war crimes being perpetrated by Russia in Ukraine to see how effective this would be in practice: would the IACC be any different?
Deterrence may only be effective where governments are actively inclined to support the new court. Regrettably, those states are probably not the targets of the new court.
Those in power in countries where corruption is the norm will look at the risk-versus-reward of the IACC and conclude that the new court’s intentions, however honorable, will likely have minimal impact on their decisions.
Those it may deter are likely to be drawn from states where the government is known to support the new court. Those who live in these law-enforcing states, with existing anti-corruption legislation, will not be those the new court should be targeting.
Are the mechanics of the IACC proposals any different from the systems we have in place today? If sufficient numbers of states sign up for the plan and streamline their internal recovery processes to facilitate cross-border asset recovery on behalf of the IACC, the court’s efficacy could be established.
Unfortunately, we currently have billions of dollars of oligarchs’ assets frozen across the globe. Freezing such assets is comparatively straightforward, but most will remain in the oligarchs’ ownership for years, if not decades, to come. The mechanisms for efficiently stripping oligarchs and kleptocrats of their plunder do not exist in many jurisdictions.
Even in jurisdictions that have taken a lead in the seizure of such assets, there is already the problem of what to do with them: super-yachts lie at berth, requiring crews and maintenance, while properties or other physical assets can depreciate in value (and still require upkeep). If a putative IACC could address these issues, then it would be a big step in the right direction – inevitably, these will be the same issues it would face when focusing on kleptocrats.
If the IACC’s intention would be – as Lord Hain suggests – to “require funds to be returned to countries of origin,” how practical would that be in countries where state capture has become a reality? What do we do with the funds: does the IACC keep them (thus depriving the citizens of their value), or are they handed back to those, or their clique, who might steal them all over again?
And what of those sanctioned Russian oligarchs’ assets? If we sequestrate the assets of these sanctioned oligarchs, what do we do with their value (as they rightly belong to the Russian people)? We cannot pass the benefit back to Putin: so what do we do? My thoughts are that they should go to rebuild Ukraine. But how do we facilitate this legally, where speed is of the essence?
I do not wish to appear cynical. Lord Hain’s idea is a noble one, but there are many hurdles still to navigate before it can become a practical reality. So, I support the idea in principle, but will remain cautious in managing my expectations until we can better understand how this will all function.