Abstract

In War and Peace, Leo Tolstoy wrote that “the thoughts that have enormous consequences are always simple.”1 This essay explains an ambitious idea with enormous consequences that is simple: an International Anti-Corruption Court is needed to diminish the devastating consequences of grand corruption, the abuse of public office for private gain by a nation's leaders. Grand corruption depends on a culture of impunity in countries whose leaders will not permit the enforcement of existing criminal laws against their close colleagues and themselves. An International Anti-Corruption Court would provide a forum to enforce those laws, punish corrupt leaders, and deter and thus diminish grand corruption. The successful prosecution and imprisonment of corrupt leaders would create opportunities for the democratic process to produce successors dedicated to serving their people rather than to enriching themselves.

As the contents of this volume of Dœdalus demonstrate, there is a growing international understanding that more effective means are needed to combat corruption, particularly what is coming to be called “grand corruption” or “kleptocracy.” Grand corruption is the abuse of public office for private gain by a nation's leaders. It flourishes in many countries because of a failure to enforce existing criminal statutes prohibiting bribery, money laundering, and the misappropriation of national resources. Impunity exists because corrupt leaders control the police, the prosecutors, and the courts.

In 2016, leaders from more than forty countries met in London for the Anti-Corruption Summit. They endorsed a Global Declaration Against Corruption, committing each represented nation to the proposition that “the corrupt should be pursued and punished.”2 The Declaration emphasized the “centrality” of the United Nations Convention Against Corruption (uncac), in which 183 countries pledged to enact laws criminalizing corruption and to enforce them even against their nation's leaders.3 Implicitly recognizing that existing institutions and efforts have not been adequate, the participating governments committed themselves to “exploring innovative solutions” to combat corruption.4 An International Anti-Corruption Court (iacc) would be an invaluable innovation.

It is a fundamental premise of criminal law that the prospect of punishment will deter crime. Research has validated this premise, including with regard to violations of human rights.5 The absence of risk of punishment, particularly imprisonment, contributes greatly to the pervasiveness and persistence of grand corruption.

The United States provides a model for a new international approach to creating the crucial, credible threat that corrupt leaders will be punished for their crimes. Public corruption exists in the United States. Officials-most often state and local officials - sometimes abuse their public offices for personal gain. However, in contrast to many other nations, the United States has been serious about investigating, prosecuting, and punishing powerful, corrupt public officials.

As a federal judge, in 2011, I sentenced former Speaker of the Massachusetts House of Representatives Salvatore DiMasi to eight years in prison for demanding bribes in connection with computer contracts worth $17 million. The state inspector general, in a public decision, invalidated the contracts because of flaws in the bidding process. A subsequent Boston Globe investigation revealed that the successful bidder had been paying the Speaker's law partner $5,000 per month, most of which was flowing to the Speaker. Federal-not state-prosecutors and the Federal Bureau of Investigation then continued the investigation. They found hundreds of thousands of dollars had also been paid to a friend of the Speaker. When DiMasi was charged in federal court, the case was randomly assigned to me. A jury found DiMasi guilty and I decided the sentence.

As the DiMasi case illustrates, the United States does not rely on elected state district attorneys to investigate and prosecute corrupt state and local officials because they are often part of the political establishment that must be challenged and, in any event, typically lack the necessary legal authority, expertise, and resources. In the United States, independent media often expose corruption. Federal investigators are authorized to conduct undercover operations and secretly record conversations, and are adept at unraveling complicated financial transactions. Federal prosecutors are capable of trying complex cases successfully before impartial judges and juries. As a result, public officials convicted of corruption regularly receive serious sentences, which have the potential to deter others and to create a political climate in which candidates dedicated to governing honestly are elected.

However, in countries in which grand corruption flourishes, leaders control the media and do not permit their own criminal activity to be exposed. In many countries, exemplified by Mexico, Malta, Slovakia, Turkey, and Russia, independent investigative journalists are often threatened, imprisoned, and even killed. There are no fair elections that would allow the replacement of corrupt leaders, in part because their political campaigns are frequently financed by the interests that bribe them. Because those leaders control prosecutors and judges, they are able to operate with impunity.

Therefore, an iacc is needed for the extraterritorial prosecution and punishment of corrupt leaders of countries that are unwilling or unable to enforce their own laws against powerful offenders. The international consequences of grand corruption justify the creation of an iacc, separate from but similar to the International Criminal Court (icc).

It is estimated that trillions of dollars are paid in bribes annually and that the cost of all forms of corruption is more than 5 percent of global gdp.6 Developing regions lose ten times more to corruption than they receive in foreign aid.7 Illicit outflows of funds that developing countries desperately need total more than $1 trillion per year.8

The cost of corruption is not limited to poorer countries. For example, in 2011, the third-largest outflow of illicit capital in the world came from Russia. Bribery, theft, kickbacks, and corruption cost the country $427 billion from 2000 to 2008.9 Russia's leaders evidently contribute a great deal to the illicit capital that leaves the country. In 2016, a massive leak of documents known as the Panama Papers revealed that close associates of President Vladimir Putin moved $2 billion, in transactions involving as much as $200 million at a time, through international banks and companies created to mask their true beneficial owners.10 Putin's closest friend, a cellist who had long claimed he was not wealthy, was revealed to have almost £19 million in a Swiss bank, as well as investments in numerous Russian and offshore entities, including a 3.9 percent share of a Russian bank with assets of almost $11 billion.11 In 2017, it was revealed that Russian Prime Minister Dimitri Medvedev had accumulated more than $1 billion worth of property, including vast estates in Tuscany and Russia, and owned two yachts.12

The costs of grand corruption are not exclusively economic. Grand corruption also breeds constituents for terrorists. Many supporters of the Taliban in Afghanistan and of Boko Haram in Nigeria are not religious fanatics. Rather, they are angry people attracted to organizations that have positioned themselves as prime opponents of their nation's corrupt leaders.13 At the same time, corruption-especially grand corruption-makes it difficult for governments to combat terrorism because funds intended for that purpose are regularly embezzled or misspent. For example, according to the former “anticorruption czar” of Kenya, John Githongo, corruption has “opened the door to al-Shabab” in that country because bribes were paid to high officials to obtain contracts for vital security equipment, which was substandard and delivered at inflated prices or, in some cases, not delivered at all.14

In addition, grand corruption is closely correlated with the worst abuses of human rights. As then - United Nations High Commissioner for Human Rights Navi Pillay explained in 2013:

Corruption kills…. The money stolen through corruption every year is enough to feed the world's hungry 80 times over…. Corruption denies them their right to food, and, in some cases, their right to life.15

Grand corruption also has other fatal consequences. In Sierra Leone, one-third of the funds allocated to combat Ebola in 2014 could not be accounted for; some of those funds, however, were eventually found in the bank accounts of health officials responsible for administering the relief effort.16 Angola claims the highest mortality rate in the world for children below age five, while Isobel DosSantos, the daughter of its president for thirty-eight years until 2017, is reportedly worth $3 billion.17

Moreover, indignation at grand corruption is destabilizing many countries and in the process creating grave threats to international peace and security. People around the world, particularly young people, no longer accept grand corruption as an inevitable fact of life. The ostentatious corruption of President of Ukraine Viktor Yanukovich was a major cause of the 2014 Maidan protests that drove him out of office and to Russia. The flagrant illicit wealth of Hosni Mubarak of Egypt and Ben Ali in Tunisia triggered uprisings in those countries.

The ousting of Yanukovich and the ensuing Russian invasion of Crimea badly damaged the United States and European Union's relationship with Russia, impairing their ability to cooperate on vital security matters, including in Syria and Iran. The removal of Mubarak cost the United States a valuable, though corrupt, partner in the Middle East. As these examples illustrate, grand corruption creates difficult dilemmas for the United States and its allies. Secretary of State John Kerry was therefore correct when he asserted in 2016 that “the quality of governance is no longer just a domestic concern.”18

Grand corruption does not thrive because of a lack of laws. As indicated earlier, 183 countries are parties to uncac. Almost all of them have enacted the required statutes criminalizing bribery, money laundering, and misappropriation of national resources. Parties to the Convention also have an international legal obligation to enforce those laws against corrupt leaders. However, as explained earlier, many countries do not hold corrupt leaders accountable because those very leaders control every element of the administration of justice. Kleptocrats enjoy impunity because they are able to prevent the honest, effective investigation and prosecution of their colleagues, their friends, their families, and themselves.

Again, Russia is illustrative. In 2008 and 2010, respectively, the multinational corporations Siemens ag and Daimler ag admitted, in prosecutions in New York for violating the United States Foreign Corrupt Practices Act (fcpa), to paying millions of dollars in bribes to Russian officials, as well as to officials in many other countries.19 The fcpa authorizes the prosecution of companies and individuals that pay bribes, but not of the public officials who demand or receive them. In their plea bargains, Siemens and Daimler each agreed to cooperate in the prosecution of the Russian officials they had bribed.20 The evidence, including the names of twelve officials bribed by Siemens, was turned over to the Russian government.21 Then-President Medvedev promised to pursue the cases, yet no Russian official has ever been prosecuted for taking a bribe from Siemens or Daimler.22

Instead, in countries ruled by kleptocrats, those who expose corruption are often punished. Russian lawyer Sergei Magnitsky was probing the theft by Russian officials of companies worth $230 million from his client, Hermitage Capital, when he was arrested for alleged tax fraud, tortured, and denied medical care in prison, where he eventually died.23 Similarly, Alexei Navalny, a political opponent of Putin, has been repeatedly prosecuted after exposing corruption in Russia involving government-owned energy company Gazprom, vtb Bank, Russia's chief prosecutor, and Medvedev, among others.24

Russia is not unique or, indeed, unusual in persecuting those who expose grand corruption. In 2016, Hisham Geneina, Egypt's “anticorruption czar,” revealed that endemic graft had cost his country about $76 billion.25 As a result, he was removed from office and prosecuted for disturbing the peace.26 In 2013, prosecutors in Turkey who developed corruption cases against members of then - Prime Minister Recep Erdoğan's cabinet were removed and prosecuted for allegedly attempting a coup.27 A Turkish businessman, Reza Zarrab, who was cleared in Turkey of bribing some of those cabinet members, pled guilty in New York, in 2017, to doing just that.28 A Turkish banker was convicted in the same case for conspiracy to violate U.S. sanctions on Iran, and several Turkish officials Zarrab claims to have bribed are evading prosecution, while being protected by Erdoğan in Turkey.29 One of the prosecution's witnesses in the New York case was a former Turkish police officer who had been jailed in Turkey in retaliation for leading its investigation of Zarrab and who eventually fled to the United States with evidence he had obtained.30

International treaties, including uncac itself, require the good-faith enforcement of criminal laws enacted pursuant to the Convention against a nation's leaders. However, those laws have been widely ignored. uncac's monitoring mechanism is weak, and the international community has focused excessively on whether the statutes required by uncac have been enacted and insufficiently on whether they are actually enforced.31

I myself experienced a vivid example of this in St. Petersburg in 2014. I was on a panel with diplomats from the United Nations and the European Union who praised Russia because it had enacted the statutes required by uncac. Citing substantial evidence of continuing grand corruption, I questioned whether the “progress” being praised was real or rather, like the proverbial “Potemkin village,” all façade and no substance. The positive reaction to my remarks by the many Russians in the audience confirmed that they were not fooled by the official charade that we had witnessed.

While criminal laws that could punish and deter corrupt leaders are not being enforced, there are other efforts being made to combat grand corruption. However, the fact that grand corruption continues to flourish demonstrates that the current means alone are inadequate and something new is needed.

The United States enacted the fcpa in the aftermath of Watergate, and the statute has been energetically enforced in the past decade. However, the fcpa only applies to companies that do business in the United States. Forty countries in the Organisation for Economic Co-operation and Development (oecd) Convention Against Bribery have undertaken to enact counterparts to the fcpa, but those statutes are rarely enforced.32 Moreover, as explained earlier, the fcpa, and its counterparts as well, permit only the prosecution of individuals and organizations that pay bribes, but not the public officials who often demand them.33

Another approach to attacking grand corruption is civil litigation to recover and repatriate illicitly obtained assets from the former rulers of many countries. However, asset recovery is legally complex, forensically difficult, and ponderously slow. For example, funds unlawfully obtained by former President Ferdinand Marcos were frozen in 1986 but not returned to the Philippine government until 2004.34 Efforts to recover illicitly obtained assets from Marcos's wife are still ongoing.35

In any event, even expedited asset recovery would not be effective in deterring high officials from engaging in criminal corruption. At best, only a fraction of looted assets and bribes are ever recovered. For example, in a highly publicized case, the United States alleged that Teodorin Obiang, son of the president and himself the second vice president of Equatorial Guinea, had corruptly received $100 million and laundered it in the United States by, among other things, buying a mansion, sports cars, and Michael Jackson memorabilia. After several years, the Department of Justice settled the case for $30 million and never recovered a coveted crystal studded glove worn by Jackson that Obiang was supposed to forfeit.36

As the Obiang case indicates, corrupt leaders can correctly calculate that they are unlikely to be caught and, at worst, risk being forced to return only a fraction of what they have illegally acquired. This is not sufficient to alter their corrupt conduct.

The Obiang case also illustrates how the enormous wealth corruptly obtained by high officials is typically laundered through a series of complex financial transactions and invested abroad. Some of the loot is used to buy lavish properties in the names of shell companies or straw owners in appealing places such as London, Paris, New York City, and Palm Springs. The sources of corruptly obtained funds are difficult to trace, and the true beneficial owners of assets acquired with that money are difficult to identify.

The countries that participated in the 2016 Anti-Corruption Summit in London pledged to improve the transparency of beneficial ownership and the international community's capacity to cooperate in investigating the flow of the fruits of corruption.37 These are worthy endeavors. However, it should be recognized that greater transparency of beneficial ownership and improved ability to follow the money are not ends in themselves. Rather, they are only means to discover evidence of criminal activity. There must be a forum in which evidence of corruption by a nation's leaders can be honestly and effectively presented to an impartial tribunal capable of imposing prison sentences on powerful people.

In 2002, the evils of genocide and other intolerable abuses of human rights led to the creation of the icc. The comparable consequences of grand corruption now justify the creation of an iacc. As indicated earlier, the proposed iacc should be similar to but separate from the icc. There are principled reasons for not diffusing the icc's singular focus on genocide, crimes against humanity, and war crimes. In addition, the statute that created the icc cannot be properly interpreted to give the icc jurisdiction over cases of grand corruption. Reopening the statute in an effort to expand the court's jurisdiction could lead instead to the demise of the icc.

Obtaining evidence for potential prosecutions in the iacc would be challenging. However, an International Anti-Corruption Coordination Centre was recently established by the United Kingdom, the United States, and several trusted allies to investigate allegations of grand corruption and to facilitate joint decisions concerning where cases should be prosecuted. As the examples of the Siemens and Daimler bribery of Russian officials illustrate, it would often be futile and, indeed, foolish to rely on the countries in which the crimes were committed to prosecute them. An iacc is essential to realizing the potential of improved international investigations.

In addition, after 9/11, the United States Treasury Department established an Office of Terrorism and Financial Intelligence, which has become expert in tracing sources of terrorist financing. In view of the national security implications of grand corruption, robust use of its resources to develop evidence for use in the iacc would be fully justified. It would also be appropriate to add grand corruption to the mandate of the Financial Action Task Force - an independent intergovernmental body that develops policies to protect global financial systems against money laundering, and the financing of terrorists and sale of weapons.

In any event, the iacc should employ elite prosecutors from around the world with the experience and expertise necessary to develop and present complex cases effectively. In addition, the Court should be led by able and impartial international judges.

Importantly, like the icc, the iacc should operate on the principle of complementarity. National courts would have primary jurisdiction over crimes by corrupt leaders in their countries. The iacc could only exercise jurisdiction if a nation proved unwilling or unable to make good-faith efforts to investigate, prosecute, and punish its leaders and their accomplices for corruption. The iacc would therefore be a court of last resort, to be relied upon only in cases in which national enforcement of existing domestic criminal laws against a country's leaders is not possible.

By operating on the principle of complementarity, the iacc would give countries a significant incentive to improve their capacity to enforce their criminal laws, and to punish and deter corruption, especially grand corruption. Study of abuses of human rights provides evidence “that pressure from the outside, including the exercise of extraterritorial jurisdiction by other states under universal … jurisdiction, inspires domestic trials in response.”38 The Spanish prosecution of former dictator Augusto Pinochet, his arrest in London, and his subsequent trial in Chile is a prominent example of this phenomenon. The iacc would have the potential to catalyze comparable national responses to grand corruption.

The iacc should have jurisdiction to prosecute any head of state or of government, anyone appointed by a head of state or government, and anyone who conspires with one of those officials, if they violate a statute required by uncac. The iacc would therefore not require the creation of any new legal obligations. Rather, it would only provide a venue for the enforcement of existing norms that are codified in the laws of virtually every country.

The iacc's jurisdiction should include cases concerning corrupt leaders of countries that join the Court but prove to be unwilling or unable to enforce their domestic anticorruption laws against them. The iacc should also have jurisdiction concerning leaders of countries that do not join the Court in certain circumstances. For example, a leader of any state who used the financial system of an iacc member to launder the proceeds of a bribe should be subject to prosecution in the iacc if the member state is unwilling or unable to prosecute. In addition, the United Nations Security Council should be authorized to refer the leader of any country for prosecution in the iacc, as it can refer for prosecution in the icc citizens of states that have not joined the court.

Since I first proposed the iacc in two articles published in 2014, the concept has been questioned and criticized, and also gained significant support.39 A common criticism of the iacc is that it would violate the sanctity of national sovereignty.40 However, any country that agreed to join the iacc would delegate to the court the authority to enforce its domestic laws if necessary. Therefore, prosecution of its leaders in the iacc would not be a violation of national sovereignty, but rather a vindication of the will of its people. In any event, as grand corruption has substantial international consequences, there is a compelling justification for an iacc to enforce a nation's laws against its corrupt leaders when they themselves are the obstacle to domestic enforcement.

It is sometimes said that creating another court comparable to the icc, which costs about $160 million a year, would be too expensive. However, corruption is estimated to cost trillions of dollars annually, and grand corruption contributes greatly to that cost. The iacc would reduce corruption and thus save many nations enormous sums of money. Moreover, a conviction in the iacc could result not only in a prison sentence, but in an order of restitution to the victimized country as well. Fines imposed by the iacc could be used to defray, if not cover, the costs of its operation. Therefore, an iacc would be cost-effective.

Some argue that the icc is weak, unfair in its prosecutorial policies, and not a model worthy of emulation. Although 124 nations have joined the icc, its jurisdiction is not universal. Major powers - including China, Russia, India, and the United States-have refused to join, largely immunizing themselves from prosecution in the icc.

It is, however, premature to declare the icc a failure. The federal courts in the United States were also weak at a similar stage in their development. In 1832, the Supreme Court issued an order that irritated President Andrew Jackson, who ignored it and famously (but probably apocryphally) is said to have responded, “[Chief Justice] John Marshall has made his decision, now let him enforce it.”41 However, by 1974, Richard Nixon knew that the American people and Congress would not tolerate a president who defied a Supreme Court order. Therefore, he turned over the tapes of conversations in the Oval Office concerning crimes and cover-ups, and resigned in disgrace instead.42

It is true that major powers on the United Nations Security Council have at times blocked investigations of their allies, such as China's protection of North Korea. It is also true that the icc has achieved only five convictions, and all have been of Africans. However, the icc has focused on Africa for legitimate reasons. Thirty-three African states joined the Court-the most from any region; crimes against humanity have occurred repeatedly in Africa since the icc was established; and most of the icc investigations in Africa were opened at the request of the African governments themselves.43

In addition, the icc has been broadening its focus. In 2017, it conducted ten preliminary examinations, only four of which involved African countries. Ukraine, Colombia, Iraq, and Afghanistan are among the nations still being investigated.44 The preliminary examination of icc member Afghanistan could actually generate prosecutions of United States and British nationals if there is sufficient evidence that they committed war crimes in Afghanistan, and their governments are shown to have been unwilling to conduct genuine investigations and make good-faith decisions concerning whether to prosecute.

Some objections to the icc actually indicate that the Court is developing credibility and having an impact. President Rodrigo Duterte of the Philippines objected to the icc after a warning that his country might be investigated for the extrajudicial killings of drug dealers and addicts. Similarly, Russia denounced the icc after the United States and the United Kingdom urged the court to investigate Russian bombings in Syria.45

Perhaps one of the most significant arguments in favor of the icc is that there is increasing evidence that prosecutions of human rights abuses in that court, as well as in domestic courts, are deterring violations of human rights.46 As explained earlier, the principle of complementarity provides an incentive to states to improve their own institutions and efforts. icc investigations have already catalyzed reforms in the Democratic Republic of the Congo, Sudan, Guinea, Georgia, and Colombia.47 In addition, there is evidence that both the former president of Colombia and the Revolutionary Armed Forces of Colombia (farc) rebels factored the possibility of icc prosecution into their negotiations to end a fifty-year civil war.48 Such examples have prompted some scholars to conclude that

icc investigations, indictments and convictions or those triggered by complementarity are likely to encourage actual or potential perpetrators to reassess the risks of punishment - relative to the status quo, which is often impunity-and to moderate their behavior.49

The deterrent effect of an International Anti-Corruption Court on grand corruption should be even greater than the icc's impact on violations of human rights. War crimes and related human rights abuses typically occur during armed conflict, when perpetrators may view the ends as justifying the means. In contrast, grand corruption involves discretionary crimes of calculation. When there is no risk of sanction because the official controls all power to prosecute and punish, there is nothing to inhibit an avaricious leader from enriching himself corruptly. However, when the credible threat of extraterritorial prosecution and imprisonment is established, the calculation-and the conduct-should change.

Finally, the most common criticism of the proposed iacc is that it represents an impossible ideal. Some argue that if China, Russia, India, and the United States refused to join the icc, corrupt leaders of other countries are even less likely to allow their nations to join an iacc in which they could be prosecuted. However, submitting to the jurisdiction of the iacc could be made a requirement of being a party to uncac and a member of the World Trade Organization. It could also be made a prerequisite for receiving bilateral foreign aid and loans from the World Bank and other development organizations.

Trade agreements are another means of promoting membership in the iacc. For example, the recent Trans-Pacific Partnership (tpp) has the “strongest anti-corruption and transparency standards of any trade agreement,” according to the Office of the U.S. Trade Representative.50 Among other conditions, the tpp requires signatories to become parties to uncac, and to enact and enforce anticorruption laws.51 It also creates a mechanism to sanction violations of those requirements.52 Unfortunately, missing from the tpp sanctions is accountability for failure to enforce the tpp's required anticorruption laws. However, joining the iacc could be a condition for becoming party to major trade agreements such as the tpp.

There are several models for a process to create the iacc. One is the icc, which was founded in 2002 as a result of efforts that began after World War II. The victorious allies created courts to try Germans and Japanese for alleged war crimes. Those courts were intended to establish the principle of individual accountability under the law, and to deter future wars and war crimes. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide declared genocide to be a crime. However, for fifty years there was no forum for the prosecution of individuals who committed genocide.

About twenty-five years ago, this deficiency became obvious and urgent. In the wake of atrocities in the former Yugoslavia and Rwanda, the United Nations Security Council established ad hoc tribunals to try perpetrators of genocide. A coalition of 2,500 civil-society organizations from 150 countries then led a successful campaign to create the icc.53 In 1998, a conference was convened in Rome to explore the creation of a permanent international criminal court. A treaty was endorsed by 120 countries. The required sixty countries ratified the treaty much sooner than expected and, only four years later, the icc was established.54

The 1997 Mine Ban Treaty provides another model for how to establish the iacc. This treaty emerged from the International Campaign to Ban Landmines (icbl), which was launched by six nongovernmental organizations (ngos) in 1992. The ngos partnered with a core group of countries, including Canada, Norway, Austria, and South Africa, to conduct the campaign. By 1997, a treaty had been signed by 122 nations, becoming binding law with unprecedented speed.55

As the leader of the icbl, Nobel Peace Prize recipient Jody Williams, explained:

[I]t is possible for ngos to put an issue … on the international agenda, [and] provoke urgent actions by governments and others…. It is [ also ] possible to work outside of traditional diplomatic forums, practices, and methods and still achieve success multi-laterally.56

Williams's view has been validated by the International Campaign to Abolish Nuclear Weapons (ican). ican was formed in Australia in 2007 to work for the adoption of a convention to eliminate nuclear weapons after decades of unsuccessful efforts to regulate them. Emulating the icbl, ican involved 468 organizations in 101 countries, led by a few medium-sized nations, including Austria and Canada. In 2017, a Treaty on the Prohibition of Nuclear Weapons was adopted at the United Nations by a vote of 122 to 1. While the treaty is not supported by any of the states that now have nuclear weapons, it reflects a significant evolution of international norms and is a meaningful milestone. Although viewed by many in 2007 as a quixotic quest, ican was awarded the Nobel Peace Prize in 2017.57

The iacc is still only a concept, and does not yet constitute an organized campaign. However, it is a concept that many people around the world find clear and compelling. They now know that grand corruption is extremely expensive, creates constituents for terrorists, is closely correlated with the worst abuses of human rights, and is destabilizing many countries and the world. They understand that something new is needed to hold kleptocrats accountable for their crimes.

Therefore, conditions comparable to those that led to the creation of the icc are emerging for the iacc. The proposed Court is supported by: prominent officials, including the United Nations High Commissioner for Human Rights and Nobel Peace Prize recipient President Juan Manuel Santos, who made Colombia the first country to endorse the iacc; leading ngos, such as Transparency International, Global Witness, and Human Rights Watch; and courageous young people, including leaders of the Maidan uprising in Ukraine.

In short, there is a growing legion of advocates for a simple idea with enormous consequences: the iacc is urgently needed to end impunity for corrupt leaders, and to deter and diminish grand corruption.

ENDNOTES

1

Leo Tolstoy, War and Peace (Boston: Colonial Press, 1904), 426.

2

United Kingdom Office of the Prime Minister, “Global Declaration Against Corruption,” May 12, 2016, https://www.gov.uk/government/publications/global-declaration-against-corruption/global-declaration-against-corruption.

3

United Kingdom Office of the Prime Minister, “Anti-corruption Summit London 2016: Communique,” May 12, 2016.

4

Ibid., para. 3.

5

Valerie Wright, “Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment,” The Sentencing Project, November 2010, 4–5, http://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf; citing Andrew von Hirsch, Anthony E. Bottoms, Elizabeth Burney, and P. O. Wikstrom, Criminal Deterrence and Sentence Severity : An Analysis of Recent Research (Oxford: Hart Publishing, 1999). See also Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?” University of Pennsylvania Law School Faculty Scholarship Paper 1686 (Philadelphia: University of Pennsylvania Law School, 2016), 9, http://scholarship.law.upenn.edu/faculty_scholarship/1686/.

6

International Chamber of Commerce, Transparency International, World Economic Forum, and United Nations Global Impact, Clean Business is Good Business: The Business Case Against Corruption (Cologny, Switzerland: World Economic Forum, 2008), 2, https://www.unglobalcompact.org/docs/issues_doc/Anti-Corruption/clean_business_is_good_business.pdf; and The WorldBank, “The Costs of Corruption,” April 8, 2004, http://go.worldbank.org/LJA29GHA80.

7

Dev Kar and Sarah Freitas, Illicit Financial Flows from Developing Countries over the Decade Ending 2009, (Washington, D.C.: Global Financial Integrity, December 15, 2011), http://www.gfintegrity.org/report/illicit-financial-flows-from-the-developing-world-over-the-decade-ending-2009/.

8

Dev Kar and Joseph Spanjers, Illicit Financial Flows from Developing Countries: 2004–2013 (Washington, D.C.: Global Financial Integrity, December 2015), vii, http://www.gfintegrity.org/report/illicit-financial-flows-from-developing-countries-2004–2013/.

9

Kar and Freitas, Illicit Financial Flows from Developing Countries over the Decade Ending 2009, 12.

10

International Consortium of Journalists, “Grant Leak of Offshore Financial Record Exposes Global Array of Crime and Corruption,” April 3, 2016, https://www.icij.org/investigations/panama-papers/20160403-panama-papers-global-overview/.

11

Luke Harding, “Sergei Roldugin, the Cellist Who Holds the Key to Tracing Putin's Hidden Fortune,” The New York Times, April 3, 2016, https://www.theguardian.com/news/2016/apr/03/sergei-roldugin-the-cellist-who-holds-the-key-to-tracing-putins-hidden-fortune.

12

Editorial Board, “Online Dissidents Expose the Russian Prime Minister's Material Empire,” The Washington Post, March 9, 2017.

13

Sarah Chayes, “Nigeria's In-Your-Face Corruption May be Fueling Boko Haram Terrorism,” Los Angeles Times, January 30, 2015, http://www.latimes.com/opinion/op-ed/la-oe-chayes-nigeria-corruption-election-20150201-story.html; and John Githongo, “Corruption Has Opened Door to Al-Shabaab in Kenya,” The Guardian, March 19, 2015, https://www.theguardian.com/world/2015/mar/19/corruption-has-opened-door-to-al-shabaab-in-kenya.

14

Githongo, “Corruption Has Opened Door to Al-Shabaab in Kenya.”

15

Navi Pillay, “The Negative Impact of Corruption on Human Rights,” Opening Statement to the Office of the United Nations High Commissioner on Human Rights, March 13, 2013, http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13131&LangID=e.

16

Lisa O'Carroll, “Sierra Leone Investigates Alleged Misuse of Emergency Ebola Funds,” The Guardian, February 17, 2015, https://www.theguardian.com/world/2015/feb/17/sierra-leone-investigates-alleged-misuse-of-emergency-ebola-funds.

17

Nicholas Kristof, “The Deadliest Country for Kids,” The New York Times, March 19, 2015, http://www.nytimes.com/2015/03/19/opinion/nicholas-kristof-deadliest-country-for-kids.html?emc=eta1&_r=0; and Nicholas Kristof, “Two Women, Opposite Fortunes,” The New York Times, March 21, 2015, http://www.nytimes.com/2015/03/22/opinion/sunday/nicholas-kristof-two-women-opposite-fortunes.html?emc=eta1&_r=0.

18

John Kerry, “Remarks at the World Economic Forum,” U.S. Department of State, January 22, 2016, https://2009–2017.state.gov/secretary/remarks/2016/01/251663.htm.

19

United States Department of Justice, “Daimler ag and Three Subsidiaries Resolve Foreign Corrupt Practices Act Investigation and Agree to Pay $93.6 Million in Criminal Penalties,” April 1, 2010, http://www.justice.gov/opa/pr/2010/April/10-crm-360.html; and United States v. Daimler AG, No. 1:10-cr-00063-RJL, United States District Court for the District of Columbia (2010), para. 19.

20

United States Department of Justice, “Daimler ag and Three Subsidiaries Resolve Foreign Corrupt Practices Act Investigation and Agree to Pay $93.6 Million in Criminal Penalties.”

21

“This is How We Roll: Russians Learn How to Pronounce fcpa,” Russia Monitor, May 4, 2010, http://therussiamonitor.com/2010/05/04/this-is-how-we-roll-russians-learn-how-to-pronounce-FCPA/.

22

Ibid.

23

Ellen Barry, “Lawyer Held in Tax Case in Russia Dies in Jail,” The New York Times, November 18, 2009, http://www.nytimes.com/2009/11/18/world/europe/18russia.html.

24

Julia Ioffe, “Net Impact: One Man's Cyber Crusade Against Russian Corruption,” The New Yorker, April 4, 2011, https://www.newyorker.com/magazine/2011/04/04/net-impact; Nataliya Vasilyeva, “Activist Presses Russian Corporations for Openness,” The Boston Globe, April 1, 2010, http://www.boston.com/business/articles/2010/04/01/activist_presses_russian_corporations_for_openness/; and Andrew E. Kramer, “Putin Aide Said to Hold Secret Assets in Europe,” The New York Times, July 27, 2012, http://www.nytimes.com/2012/07/27/world/europe/in-russia-aleksei-navalnyaccuses-chief-investigator-of-secret-european-holdings.html.

25

Declan Walsh, “Graft Fighter in Egypt Finds Himself a Defendant in Court,” The New York Times, June 6, 2016, http://www.nytimes.com/2016/06/07/world/middleeast/egypt-hishamgeneina-trial.html?_r=0.

26

Ibid.

27

“Golden Squeal: Did Officials Help Evade Sanctions?” The Economist, June 11, 2016, http://www.economist.com/news/europe/21700422-did-officialshelp-evade-sanctions-golden-squeal.

28

Benjamin Weiser, “Reza Zarrab, Turk at Center of Iran Sanctions Case, is Helping Prosecution,” The New York Times, November 28, 2017, https://www.nytimes.com/2017/11/28/world/europe/reza-zarrab-turkey-iran.html.

29

Brendan Pierson, “U.S. Jury Finds Turkish Banker Guilty of Helping Iran Dodge Sanctions,” Reuters, January 3, 2018, https://www.reuters.com/article/us-usa-turkey-zarrab/u-s-jury-finds-turkish-banker-guilty-of-helping-iran-dodge-sanctions-idUSKBN1ES1D0; and Hulya Polat, “TurkishOfficials Lash Out Against Bribery Claims in New York Trial,” VOA News, November 30, 2017, https://ww.voanews.com/a/turkey-officials-lash-out-against-bribey-clains-in-new-york-trial/4144237.html.

30

Pierson, “U.S. Jury Finds Turkish Banker Guilty of Helping Iran Dodge Sanctions.”

31

Transparency International, UN Convention against Corruption: Progress Report 2013 (Berlin: Transparency International, 2013), 15–16, http://www.transparency.org/whatwedo/publication/un_convention_against_corruption_progress_report_2013.

32

Transparency International, Exporting Corruption - Progress Report 2015 : Assessing Enforcement of the OECD Convention on Combatting Foreign Bribery (Berlin: Transparency International, 2015), 2–7, https://issuu.com/transparencyinternational/docs/2015_exportingcorruption_oecdprogre.

33

David Leigh and Rob Evans, “bae : Secret Papers Reveal Threats from Saudi Prince,” The Guardian, February 15, 2008. bae was successfully prosecuted in the United States on charges related to the fcpa and agreed to pay $450 million in penalties to the United States and Britain.

35

The World Bank and undoc Stolen Asset Recovery Initiative, Corruption Case Database, https://star.worldbank.org/corruption-cases/home.

36

Arvind Ganesan, oral testimony to Tom Lantos Human Rights Commission Briefing: An International Anti-Corruption Court (iacc) to Mitigate Grand Corruption and Human Rights Abuses, November 13, 2014, https://www.hrw.org/news/2014/11/13/tom-lantos-human-rights-commission-briefing-international-anti-corruption-court-iacc.

37

Michael S. Schmidt and Steven Lee Myers, “Panama Law Firm's Leaked Files Detail Offshore Accounts Tied to World Leaders,” The New York Times, April 3, 2016.

38

Geoff Dancy and Florencia Montal, “Unintended Positive Complementarity: Why International Criminal Court Investigations Increase Domestic Human Rights Prosecutions,” paper presented at the American Society of International Law Research Forum, Chicago, November 6–8, 2014, and at The Impact and Effectiveness of the International Criminal Court Conference, The Hague Institute of Global Justice, the Netherlands, December 11–12, 2014, 8.

39

Mark L. Wolf, “The Case for an International Anti-Corruption Court” (Washington, D.C.: The Brookings Institution, 2014), https://www.brookings.edu/research/the-case-for-an-international-anti-corruption-court/; and Mark L. Wolf, “Ending Global Corruption,” The Washington Post, July 23, 2014.

40

Brett D. Schaefer, Steven Groves, and James M. Roberts, “Why the U.S. Should Oppose the Creation of an International Anti-Corruption Court,” The Heritage Foundation, October 1, 2014, http://www.heritage.org/global-politics/report/why-the-us-should-oppose-the-creation-international-anti-corruption-court.

41

Marbury v. Madison, 5 U.S. 137 (1803); and Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt and Co., 1996), 15.

42

United States v. Nixon, 418 U.S. 683 (1974).

43

Norimitsu Onishi, “South Africa Reverses Withdrawal from International Criminal Court,” The New York Times, March 8, 2017, https://www.nytimes.com/2017/03/08/world/africa/south-africa-icc-withdrawal.html?_r=0.

44

Jessica Hatcher-Moore, “Is the World's Highest Court Fit for Purpose?” The Guardian, April 5, 2017, https://www.theguardian.com/global-development-professionals-network/2017/apr/05/international-criminal-court-fit-purpose.

45

Ibid.

46

Kathryn Sikkink, “Global Deterrence-and Human Rights Prosecutions,” in The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (New York: W. W. Norton & Company 2011), 162–188.

47

Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?” Faculty Scholarship Paper 1686 (Philadelphia: University of Pennsylvania Law School, 2016), 11, http://scholarship.law.upenn.edu/faculty_scholarship/1686/.

48

Ibid., 12.

49

Ibid.

50

Office of the United States Trade Representative, “Trans-Pacific Partnership: Strengthening Good Governance Fact Sheet,” https://ustr.gov/sites/default/files/TPP-Strengthening-Good-Governance-Fact-Sheet.pdf.

51

Office of the United States Trade Representative, Trans-Pacific Partnership, chap. 26, art. 26.6, 26.7, and 26.9, https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text.

52

Ibid., art. 26.12, 28.

53

Coalition for the International Criminal Court, “About the Coalition,” http://www.coalitionfortheicc.org/about-coalition-0.

54

Daniel Donovan, “International Criminal Court: Successes and Failures,” International Policy Digest, March 23, 2012, https://intpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures/.

55

Stephen Goose and Jody Williams, “The Campaign to Ban Antipersonnel Landmines: Potential Lessons,” in Landmines and Human Security: International Politics and War's Hidden Legacy, ed. Richard A. Matthew, Bryan McDonald, and Kenneth R. Rutherford (Albany: State University of New York Press, 2004).

56

Ibid., 241.

57

International Campaign to Abolish Nuclear Weapons, “Nobel Peace Prize 2017,” October 6, 2017, http://www.icanw.org/action/nobel-peace-prize-2017-2/.