THE ESTABLISHMENT OF AN ANTI-CORRUPTION COURT.

• Author: Goldstone, Richard J.

1. INTRODUCTION

   It has been my privilege and pleasure to have worked with Leila Sadat on several projects for over two decades. Since 2014, I have served on the Steering Committee for the project on the Convention for the Prevention and Punishment of Crimes Against Humanity. The project is Leila's brainchild, and she has devoted all her considerable skills into its development. The convention was taken up by the International Law Commission and a draft convention is now before the Sixth Committee of the United Nations General Assembly. Without Leila Sadat's legal and political skills and persistence this progress would not have been possible. It was with alacrity that I accepted the invitation to contribute an essay for this anthology in celebration of Leila Sadat and recognising her outstanding contribution to her law school, her students, and to international humanitarian law.

2. CORRUPTION AND THE NECESSITY FOR GLOBAL STEPS TO DETER GLOBAL CORRUPTION

   Corruption at all levels of society--both public and private--has become a global scourge. It manifests itself at many levels. At the leadership level, there is kleptocracy or grand corruption. (1) Below that there is the bribery and corruption at the executive level--including the police and prosecution authorities. Then there is the further manifestation of corruption at the provincial and local level. There are few countries, if any, that are not grappling with the consequences of this disease at some or all of those levels.

   Many domestic systems are not equipped to investigate and prosecute the perpetrators of crimes of corruption. In the case of grand corruption, the criminal leader or leaders and their criminal partners control the police and prosecution authorities, and in some cases, the courts.

   It has been estimated that trillions of dollars are paid in bribes annually and that the cost of all forms of corruption is more than five percent of global GDP. (2) Developing regions lose ten times more to corruption than they receive in foreign aid. (3) Illicit outflows of funds that developing countries desperately need total more than $1 trillion per year. (4) In an op-ed published in April 2020, Judge Mark L. Wolf and I anticipated that huge sums of money would likely be stolen from the significant funds then already being devoted to fighting the COVID-19 pandemic. (5) Even then, we could hardly have anticipated the vast sums that would be diverted for the personal gain of those officials who did not hesitate to steal from the most in need of preventive and medical treatment.

   In 2014, Judge Wolf took the initiative in establishing Integrity Initiatives International (III), a civil society organisation designed to bring attention to and find effective tools for the prevention and punishment of grand corruption. (6) One of its principal goals is to galvanise support for an International Anti-Corruption Court (IACC).

   There are 188 States Parties to the United Nations Convention Against Corruption (UNCAC). (7) That Convention obliges them to promulgate appropriate domestic legislation aimed at prohibiting and preventing corruption. (8) The vast majority of those States have such legislation. However, it has not significantly curbed corruption in States that are victim to grand corruption. The reason is not difficult to find--those laws are not implemented and there is wide impunity for the corrupt, and especially for kleptocrats. The solution can only be found at the global level by establishing effective tools to prosecute and punish these evil thieves.

   The global steps that might be considered are:

   * Using the International Criminal Court (ICC);

   * Creating an ad hoc international tribunal;

   * Appointing a Special Rapporteur; and

   * Creating an International Anti-Corruption Court.

   Using the ICC poses insuperable practical problems. The crimes that fall within the jurisdiction of the ICC are defined in Articles 5 - 8 of the Rome Statute. The only crime that might be relevant to grand corruption is crimes against humanity. (9) Some egregious acts of grand corruption that might victimise a civilian population could theoretically constitute such a crime. It would be exceedingly difficult to establish and would require evidence to prove the intentional perpetration of this crime beyond a reasonable doubt. Nothing short of intending to harm the civilian population of the nation would suffice to achieve a conviction. There is also the problem that with the limited resources of the ICC, its Prosecutor would be hard put to give priority to grand corruption in the face of crimes such as genocide and the murder or persecution of large...