Does the world need an International Anti—Corruption Court?

The clandestine nature of grand corruption makes it impossible to quantify accurately. Nonetheless, data from the 2000s shows that approximately US$660 billion per year of illicit financial flows from developing countries were related to corruption and other crimes.

According to the Corruption Perception Index 2020, corruption is present in almost all countries around the world. This index reveals that two of third of the countries score below 50, and the international average is 43. Even the least corrupt countries such as Denmark, New Zealand, and Finland do not have a perfect score.

In any case, kleptocracy is not simply a local crime, but a transnational one. It therefore requires a transnational mechanism to tackle it.  

For some proponents, the International Criminal Court (ICC) and regional human rights courts could do more, alongside national anti-corruption courts as in countries like Ukraine; and international commissions against impunity and corruption such as the Commission Against Impunity in Guatemala (CICIG). Yet, these solutions are insufficient to address the levels of corruption that the world is facing.

Firstly, the ICC is not an effective mechanism for investigating and punishing grand corruption. According to the Rome Statute, the ICC has jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression. Despite the limited jurisdiction of the Court, Roht-Arriaza & Martinez (2019) have pointed out that the anti-corruption perspective in the analysis of the Court's jurisdiction has been useful to prove the systematic attack and a State or organizational policy as the Rome Statute require. The case of Venezuela is an example of this. However, Roht-Arriaza & Martinez (2019) have also strongly asserted that it does not mean that grand corruption is considered a crime against humanity in terms of the Rome Statute. Consequently, while the anti-corruption perspective can be beneficial for the analysis of the ICC's jurisdiction, the ICC does not have jurisdiction to investigate and prosecute grand corruption by itself. Trying anti-corruption cases in regional human rights courts faces a similar issue since these courts do not have direct jurisdiction over crime investigations by themselves.

Secondly, the proposal to establish special anti-corruption courts and prosecutors in each country has many advantages, but it would not be enough because they lack transnationality of solutions. Ukraine is a noteworthy example of this.  Between  2015 and 2019, with the support of many stakeholders, Ukraine launched specialized institutions to tackle corruption including the High Anti-Corruption Court. These new bodies have worked together to investigate and punish grand corruption cases, and they have provided extraordinary results.  However, despite these results, this court only has jurisdiction in cases committed in Ukraine, so it is not able to address the issue of grand corruption, which more than ever is carried out through transnational networks.

Thirdly, as with the creation of specialized courts in each country, the establishment of special anti-impunity commissions can be extremely effective, but crucially lacks sustainability. According to the International Crisis Group, the Commission against Impunity in Guatemala (CICIG) is an excellent example of an innovative way to reduce the impunity of corruption, especially in places which lack the rule of law. The Commission depended on the United Nations and was directed by an independent non-Guatemalan commissioner. It was in operation between 2007 to 2019, addressing the extremely high levels of impunity and crime.

Although the CICIG was not specifically designed to tackle corruption, it was effective at convicting high-level politicians and members of the army, and even obliged the resignations of a president and vice president due to corruption.  Despite these achievements, however, the Commission was dissolved in 2019 following a decision by the president Jimmy Morales to reject its mandate. In this example, we see clearly that when anti-corruption bodies depend on the rulers of the country, their sustainability cannot be assured.

So, to conclude, even though each of these examples I have sought to tackle corruption, none have been effective on their own.  For that reason and notwithstanding political and financial barriers that would need to be overcome, I believe that an International Anti-Corruption Court is the way forward. Work needs to be done to pursue this option as corruption continues to affects us all.

Estefania Medina

MSc in Criminology and Criminal Justice System

Candidate

Estefania Medina is a candidate for the MSc in Criminology and Criminal Justice and co-founder of TOJIL, a Mexican NGO working strongly against corruption and impunity. She is a lawyer by Iberoamericana University and a Criminal Lawyer by "Escuela Libre de Derecho" School of law. She has held public positions such as Federal Prosecutor of corruption cases at the Attorney General's Office of Mexico and advisor at the Executive Secretary of the National Security System of Mexico and the House of Representatives. She is a member of the UNCAC Coalition, a member of the civil society support group of the Federal Financial Intelligence Unit of Mexico, and a member of the Mexican Bar Association.