By: Richard Goldstone, Paul Hoffman and Ian Lynch
There is growing global momentum for the establishment of an International Anti-Corruption Court, a court that could have helped prevent Russia’s oligarchs and kleptocrats from fuelling the invasion of Ukraine.
In the darkest days of World War 2, Winston Churchill came up with the expression, “never waste a good crisis”.
The current situation in Ukraine has caused a large crisis that has the potential to provoke World War 3. The oligarchs and kleptocrats of the Russian Federation are using their ill-gotten gains to finance acts of aggression, war crimes and possibly even genocide in Ukraine. They are enabled by the proceeds of their corruption, without which they would not have the wherewithal to comport themselves as they do.
Most countries in the world are party to the UN Convention against Corruption (UNCAC). Article 5.1 of the Convention reads:
“Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.”
Had the Russian Federation paid any attention to complying with the provisions of Article 5.1, the endemic kleptocracy that it has become would not have taken root at the Kremlin in Moscow or in the corridors of power throughout Russia.
As Kofi Annan, then Secretary-General of the UN, observed when UNCAC was finalised after many years of arduous work:
“Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish.”
There is an urgent need to generate the political will to take the treaty obligations quoted above, and the words of Annan, more seriously so that peace that is secure, progress that is sustainable and prosperity that is shared replaces the less than satisfactory governance arrangements currently in place in far too many countries in the world.
The UN knows this is so. Its UN Sustainable Development Goals, in particular SDG #16, recognise the need for strong institutions of government if sustainable development is to become a reality in the future.
The habit of electorates to vote for politicians who gouge, rather than politicians who serve, has to end.
A world in which accountability, openness and responsiveness to the needs of ordinary people prevail is not attainable unless those in elected office set out to serve the best interests of the people rather than enrich themselves.
Bill Browder estimates that President Vladimir Putin of Russia is worth $22-billion, which is much more than any spy turned politician could amass legally.
Generating the political will to get serious about countering the corrupt more proactively, effectively and efficiently than is all too often the case in the world today, is a matter of education of voters, adjustment or reform of institutions and desire for a better world.
International Anti-Corruption Court
An institution that is needed but does not yet exist is the International Anti-Corruption Court (IACC) advocated by Integrity Initiatives International. Where courts at state level are unable or unwilling to act against the corrupt, the IACC steps in to address the situation.
At this time, the notion of an IACC is supported by a host of world leaders and, more recently, the governments of Canada and the Netherlands.
On Monday, 11 April 2022, the Dutch Foreign Ministry issued a press release on a gathering of EU foreign ministers that Dutch Foreign Minister Wopke Hoekstra organised ahead of the EU Foreign Affairs Council. Discussing the war in Ukraine, Hoekstra cited the deeper underlying causes of the conflict, including flagrant corruption, which constitutes the economic bedrock of the autocratic and repressive system in Russia.
That kleptocratic system is now acting aggressively beyond its own borders. This poses a threat to the prosperity, stability and security of the entire region.
In order to curb large-scale corruption of this nature, Hoekstra said the Netherlands wants to work with like-minded countries to establish an IACC.
He said “corruption among public officials isn’t just a financial problem; it also undermines democracy and the rule of law in a country and exacerbates inequality among its people. And of course it’s a form of criminality.
“Not only does the country itself suffer, but other countries’ interests are harmed too. By establishing an anti-corruption court, the Netherlands aims to strengthen the international legal order. But to make this happen, we will need the support of many other countries.”
Recognising that establishing an IACC will be a long-term endeavour and require broad support within the international community, the Netherlands, Canada, Ecuador and other partners will hold a ministerial conference this (northern hemisphere) autumn on the subject of international efforts to tackle corruption.
Had there been an IACC in February 2022, when the war in Ukraine started, it would have been possible for the prosecutors to arraign the Russian oligarchs, seize their assets and put them on trial for their corrupt activities.
These steps are not all possible at this stage in the development of the law of nations, although it has been possible to enforce sanctions and seize some assets such as yachts and the Chelsea football club.
States that prefer to deal with their corrupt elements themselves will be motivated to avoid the attention of the IACC prosecutors. This aim can be achieved by putting their own houses in order so that impunity for corruption ends and the law takes its course against the kleptocrats, state capturers and all involved in grand corruption.
The courts in South Africa have identified corruption as a human rights issue. There is a justiciable Bill of Rights in the SA Constitution. Many of the socioeconomic and other rights guaranteed to all in that Bill of Rights are expensive to deliver, even in those cases in which delivery is performed progressively and on the basis of available resources.
The courts reasoned that if resources are diverted to the pockets of the corrupt, then there is less public finance available for making the promises of the Bill of Rights the lived reality of the people, especially the poor.
The SA courts also found that SA is bound, at national level, to implement the undertakings it made by adoption of the UNCAC, in particular Article 5.1 quoted above.
The principles and practical criteria for countering the corrupt laid down in the relevant case law are discussed, in language friendly to the lay reader, in the e-book and audiobook, “Countering the Corrupt”, which is available for free download from www.accountabilitynow.org.za.
It was Judge Navi Pillay, wearing her UN Human Rights Commissioner hat, who said:
“Make no mistake about it, corruption is a killer… The money stolen through corruption 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.”
The crisis in Ukraine will not graduate into something terminal if the political will to deal appropriately with the kleptocrats and oligarchs worldwide can be generated.
The establishment of an IACC is a practical and useful way of demonstrating that the necessary will among nations does exist.
Clean and strong institutions of government are a UN SDG.
A critical mass of nations that take UN SDG #16 more seriously, from the perspective of countering the corrupt, is attainable. DM
Richard Goldstone, Paul Hoffman and Ian Lynch are with Integrity Initiatives International (www.integrityinitiatives.org).