How the International Anti-Corruption Court would contribute to our fight against corruption

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The idea of ​​forming international courts as a mechanism for achieving justice in cases where the national courts of states do not have enough strength, capacity or will to obtain that justice, it has long been accepted as justified, by the International Military Court in Nuremberg, through ad hoc tribunal for the former Yugoslavia and Rwanda, to the International Criminal Court (ICC). Whether these courts really fulfilled their purpose in full capacity remains for some other analysis.

Support for the creation of a "supranational" court to fight against corruption appeared in public for the first time in 2012, at the suggestion of Mark L. Wolff, Judge of the United States District Court for the District of Massachusetts, at the International Legal Forum in St. Petersburg.

It is indisputable that most countries do not have effective mechanisms in the fight against high corruption, and Serbia, unfortunately, is at the bottom of that list. Corruption of the highest state officials (kleptocrats) greatly affects the level of democracy in a country, the rule of law, human rights, climate change and environmental protection. As such, corruption certainly has an international character through money flows or the purchase of luxury real estate, airplanes, yachts and other valuables in countries around the world.

Until recently, this idea was objected to as utopian, that it sounds nice, but that it is not realistically achievable. However, the intense campaigning and growing support for this idea throughout the world and among all social factors challenges this claim.

The most significant driver for the creation of this court is Integrity Initiatives International. It is an NGO founded by Judge Mark L. Wolff in 2016 with Judge Richard Goldstone, former South African Supreme Court Justice and Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, along with other colleagues. In June 2021, they published a Declaration calling for the creation of this court. So far, the declaration has been signed by more than 125 world leaders, more than 300 prominent individuals from 80 countries, including more than 50 former presidents and prime ministers and 32 Nobel laureates and numerous international organizations (the list of all signatories is publicly available).

For our region, it is interesting to note that the declaration was signed by Redžep Meidan - former president of Albania and member of the "Club de Madrid", Alfred Gusenbauer - former chancellor of Austria and member of the "Club de Madrid", Haris Silajdžić - former prime minister and former member of the Presidency of Bosnia and Herzegovina, Zlatko Lagumdžija - former prime minister of Bosnia and Herzegovina and member of the "Club de Madrid", Rosen Plevnelijev - former president of Bulgaria, Ivo Josipović - former president of Croatia and member of the "Club de Madrid", Konstantin Simitis - former prime minister of Greece. Danilo Türk - former president of Slovenia and president of "Club de Madrid" and many others, as well as representatives of various international organizations.

Thus, in 2023, a group of leading international jurists, lawyers, academics and experts in the field of anti-corruption was formed to draft a model contract for the IACC.

IMPORTANCE OF THE IDEA AND THE PROBLEM OF HIGH CORRUPTION

Corruption is also reflected in the impossibility of realizing our everyday rights, from access to health examinations and operations, through obtaining documentation, registering rights in the cadastre, to realizing other rights that belong to us. It affects the creation of illegal landfills, mines and factories that do not meet the basic standards of environmental protection and thus affects us all, equally and strongly. Corruption of heads of state or government also leads to international conflicts.

The problem of high corruption is not the lack of legislation that regulates the sanctioning of bribery, money laundering and corruption because, for example, each of the 191 countries that are parties to the United Nations Convention against Corruption (UNCAC) has laws that criminalize corrupt behavior. Serbia also ratified this convention in 2005.

The Vienna Convention on the Law of Contracts, which was ratified by Serbia in 1972, requires that each country make a sincere effort to implement contractual obligations by applying domestic laws that criminalize certain behavior. Therefore, our laws are solid and there are wide possibilities of punishment for corrupt behavior, which are absent in practice. Of course, the problem is that individual UNCAC contracting parties are led by kleptocrats who control all institutions, which allows them impunity.

Serbia has, to a greater or lesser extent, harmonized its legislation with relevant international standards in the field of corruption. The problem of impunity for the highest state officials does not usually lie in this, but in the lack of political will to deal with high level corruption. Precisely because they control the police, the prosecution and the court, which are often corrupt themselves. Due to the captivity of institutions, they do not have the capacity to conduct complex investigations and to bring powerful and rich people to court. Laws such as the US Foreign Corrupt Practices Act (FCPA) and its forty-three equivalents enacted in countries that are parties to the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention are not sufficient to reduce the immunity that high-ranking kleptocrats enjoy and use liberally.

Pompous arrests are carried out for political, usually pre-election purposes, which, as a rule, do not receive an appropriate judicial epilogue, and many years later, citizens quietly, silently pay the huge costs of conducting such proceedings.

We have also witnessed that investigative journalists often obtain evidence of corruption, and that evidence almost never leads to an effective investigation, nor does it ever receive a judicial epilogue.

WHO WOULD THE IACC PROSECUTE? (PERSONAL JURISDICTION)

Because of all this, the idea of ​​establishing an international court that would prosecute heads of state or government, as well as other high public officials (e.g. all those appointed by heads of state or government such as assistant ministers and state secretaries, directors of public companies, directors of hospitals and clinical centers) and all those who knowingly and willingly help them in this, came up reasonably. This means that the IACC would be competent to prosecute those (private parties) who give bribes to these high-ranking officials.

Leaders of states or governments and other high officials who would fall under the jurisdiction of this court would have neither personal nor functional immunity. By accepting the jurisdiction of the IACC, countries would agree that no immunity protects former or current officials from prosecution before the IACC.

PUNISHMENT OF SENIOR STATESMEN OF THIRD COUNTRIES

As provided by earlier international treaties (those that established the work of the International Criminal Court and other international courts), officials of third countries, including current and former heads of state and government of those countries, would not have immunity from the IACC, immunity that normally protects them from prosecution in national courts, except in their own countries. The IACC would enforce the laws required by the UNCAC, especially those that prescribe the punishment of bribery, abuse of official position, public funds and public property, money laundering, etc.

This could be achieved by empowering the IACC, with the consent of a particular member state, to enforce either existing domestic laws only or a unified version of those laws included in the treaty creating the court, or both. In any case, the IACC would not require the creation of new legal norms, ie. new criminal acts, which do not already exist in domestic laws and accepted conventions.

TERRITORIAL JURISDICTION (CASH TRANSACTIONS AND PURCHASE OF VALUABLE VILLAS, AIRCRAFT AND OTHER VALUABLES ABROAD)

It is especially important to emphasize that the IACC would also have the authority to prosecute kleptocrats of member states and foreign nationals who commit a crime or some of its parts within the jurisdiction of the IACC, on the territory of a member state. Because of this, a kleptocrat who, for example, receives a bribe in a non-IACC state, but uses a member state's banking system to transfer or hide proceeds of crime, in violation of the state's national laws, can be prosecuted for money laundering before the IACC, if the state member is unable or unwilling to prosecute.

Kleptocrats almost invariably collaborate with facilitators to use international financial systems to launder money and seek to transfer their assets to attractive, foreign destinations while attempting to conceal their actual ownership of those assets.

If any element of the crime was committed by a kleptocrat in an IACC member country, the crime could be prosecuted in that court.

For example, in 2016, the "Panama Papers" revealed that close associates of President Vladimir Putin transferred two billion dollars through international banks and through companies created to hide their real owners. Thus it was revealed that Putin's childhood friend, a cellist, who claimed not to be rich, owns almost £19m in a Swiss bank and various investments in both Russian and offshore entities. In 2017, it was revealed that Russian Prime Minister Dimitri Medvedev had acquired assets worth more than a billion dollars, including land in Tuscany and two yachts.

The importance of such a defined jurisdiction came to the fore in the work of the International Criminal Court (ICC). That court authorized an investigation into possible war crimes committed by members of the US military in Afghanistan, which is a member of the ICC, even though the United States is not a member of the court.

COMPLEMENTARY ROLE OF THE COURT (APPLICATION OF THE PRINCIPLES OF ART.. 17 OF THE ROME STATUTE)

Applying the principle of complementarity, the IACC would be the court of last resort. This court would investigate or prosecute cases only if the member state was not ready, willing or able to prosecute the case itself.

If there is no referral of the case by the member state, the IACC would decide whether to withdraw in favor of the member state and leave it to work on the case or to take over the jurisdiction independently. At the same time, this court would also be guided by the principle from Art. 17 of the Rome Statute created by the International Criminal Court (ICC), as well as with the significant jurisprudence regarding complementarity already developed in that court.

For example, the IACC, like the ICC, would consider whether a member state is already investigating or prosecuting a case, whether it shows a sincere effort in doing so or uses excuses to protect powerful people from responsibility, whether the member state has the capacity and will to conduct an effective investigation and prosecute the case, independently, impartially and efficiently, and whether its judiciary is honest or corrupt.

The importance of the principle of complementarity lies in the fact that the existence of the IACC would be an incentive for many countries to improve their own capacities and efforts in prosecuting corruption, as the ICC withdrew after the preliminary investigation in Colombia in favor of the Colombian investigative authorities. Colombia promised in the cooperation agreement to continue the relevant proceedings in good faith, and the ICC promised to support them in doing so. It was then noted that the cooperation between the ICC and Colombia in order to reach this agreement strengthened Colombia's capacity to carry out justice for the most serious crimes of international concern.

In order to achieve this goal, the court will cooperate with experienced investigators, prosecutors and judges, with national experts and with multinational organizations, such as the International Anti-Corruption Coordination Center.

Although these crimes are mistakenly believed to have no specific victims, the IACC will play a major role in compensating victims of high corruption.

The idea of ​​establishing such a court includes awareness of the need to return stolen funds to victims of corruption. This money could be used to compensate the damages suffered by whistleblowers and investigative journalists when reporting or uncovering cases of corruption.

One idea is that prosecuting kleptocrats in this court could result in the return of stolen goods (and money) to the victims. Under the False Claims Act (FCA), individuals can bring civil lawsuits and sue on behalf of the United States those they believe have defrauded the US government, including cases involving bribed public officials. If the Department of Justice takes over the case (if they find the claim meritorious), the individual who brought the claim is entitled to a substantial payout from the settlement or judgment that results from that process.

Like any other international court, this one would encroach on a part of national sovereignty. Any country that joins this court would voluntarily agree to it, but would also preserve its laws that it adopted as a party to the UNCAC.

The question was also raised as to why cases of major corruption should not be prosecuted before the already existing International Criminal Court (ICC) instead of the new IACC. However, an amendment to the Rome Statute establishing the ICC would require a two-thirds majority vote of the Assembly of States Parties and would not enter into force until 7/8 of the contracting states ratify this change. Of course, some of the 123 member states of the ICC are under the rule of kleptocrats who would oppose such a change, so it would not be politically feasible.

Even if the ICC Statute were to be amended, it is unlikely that the ICC prosecutor would prioritize corruption crimes over international crimes such as war crimes and crimes against humanity, which the ICC primarily focuses on.

WOULD THE WORK OF IACC BE EXPENSIVE?

Compared to the ICC, which cost about US$2021 million in 168, the IACC could be organized to cost less than the ICC. Although it is pointed out that its jurisdiction should be limited, and the procedures less complex and time-consuming, that part has not yet been explained and clarified in detail. Corruption cases are often difficult to prove because illegal deals are made in private, live and in confidence, and such dirty deals are then followed by clean papers and procedures. This could be applied to money laundering, where the kleptocrat would have to prove its origin. The proposal is that this court, in order to simplify the procedure, would not require pre-trial chambers. The number of judges, prosecutors and other officials in active service would be adapted to the range of court cases. Fines imposed by the Court could also be used to cover its costs. It is believed that the Court's costs would in any case be minor compared to the estimated trillions of dollars lost annually to grand corruption.

Bearing in mind how much corruption "costs" annually, this Court would have limited jurisdiction, as well as the possibility of returning funds to the citizens of the "damaged" country, and would be profitable.

WHERE IS THE EVIDENCE AND HOW TO PROVIDE IT

Although it will be a challenge to collect the evidence that will often be found in a country ruled by kleptocrats, international efforts are being stepped up to trace the flow of illicit funds. And as already emphasized, transactions on accounts are often carried out through foreign bank accounts, money is "laundered" through various fictitious companies abroad, expensive real estate and valuable movables are bought abroad, and not only in the country of "origin" of the crime.

One such international effort resulted in the establishment of the International Anti-Corruption Coordination Center (IACCC), which was established in 2016.

WHY WOULD ANY GOVERNMENT OFFICIAL, AND ESPECIALLY CORRUPT, AGREED HIS COUNTRY TO ACCESS IACC-u

In the end, the most logical, common sense question is why would corrupt presidents allow their countries to join such a court, which could then prosecute them? Everything that has already been explained contains the answer to this question.

Kleptocrats launder money through foreign banks and large financial centers, through shell companies, and invest their money in the purchase of expensive real estate in prestigious world capitals (Paris, London, etc.), on prestigious ski resorts or exotic islands. Yachts and planes are kept in those (desirable and safe) countries. As explained, the IACC would have jurisdiction not only for crimes committed by citizens of IACC member countries, but also for foreign kleptocrats (autocrats who did not want to approach this Court), if those crimes (money laundering, bribing a foreign statesman, etc.) were committed on the territory of IACC member countries, which will be a frequent case, and the Court will be effective again. It is important to include countries that are significant financial centers and those destinations where gleptocrats launder, hide and spend dirty money.

photo: milica vucković / fonet

HOW TO GO TO THE INTERNATIONAL COURT FOR THE FIGHT AGAINST CORRUPTION

A new, sister organization of Integrity Initiatives International Europe (III Europe) was launched in The Hague on June 12, 2024 with the support of The Hague Ministry of Foreign Affairs.

During August 2024, a two-week meeting organized by The New Institute in Hamburg was held, where the first draft of the contract for the International Anti-Corruption Court (IACCourt) was drawn up. The next step is for the various authors to meet in smaller groups to refine parts of the draft.

After that, it is planned to consult with external partners and finally create a high-quality draft that will be offered to the states for signature.

Although this topic is largely in focus in the rest of the world, it is little known in Serbia, even among lawyers. The idea that it is necessary to find new, different mechanisms for the fight against high corruption in "trapped states" requires a public debate. The laws are good in most countries, but the problem of autocratic regimes is the inability of the courts, the police and the prosecutor's office to apply those laws. Kleptocrats and those who help them (lawyers, accountants, notaries, etc.) must be held accountable. This will not only deter many from committing criminal acts, but will also find means for reparation for victims of corruption - whistleblowers, investigative journalists, citizens whose health is threatened by corruption. Only the establishment of such a court will force some kleptocrats to implement the laws, because otherwise, the possibility of confiscating their property (funds, real estate and valuables) that they keep abroad will "hang" over their heads.

The author is a public prosecutor at the Higher Public Prosecutor's Office in Belgrade