Work on draft treaty for specialised global corruption court commences

This marked the latest development in a fast-growing consensus around the need for a specialised international corruption court. 

In January 2023, the European parliament issued a resolution calling for the creation of an IACC. Then in April 2023, the parliament convened a workshop outlining its expansive vision for the IACC, which would have jurisdiction over acts of so-called “grand corruption” and serve to “fill the domestic accountability vacuum in kleptocratic regimes” under the supervision of the UN.  

Given the function of the International Criminal Court and the existence of long-standing treaties aimed at combatting anti-corruption at an international level, the sudden pace at which demand for an IACC is intensifying might well be questioned. 

Limited remit of the ICC

Established in 2002, the ICC is well-established as the permanent court with jurisdiction to investigate and prosecute individuals who are accused of any of the core international crimes set out in the Rome Statute: war crimes, genocide, crimes against humanity, and crimes of aggression. 

While the ICC remains a figurehead institution for upholding the rule of law and seeking justice for victims of crimes within its jurisdiction, the ICC does not have jurisdiction to investigate or prosecute crimes of corruption, which is estimated by the UN to cost the global economy more than $3.6tn (£3tn) each year, with many more trillions of dollars lost owing to illicit financial flows.  

The IACC will remain only an aspiration unless and until there is sufficient political will to ratify a treaty creating the necessary international framework

This is a troubling lacuna: acts of corruption often facilitate other forms of crime including terrorist activity, money laundering, cyber crime, and serious human rights offences. The IACC therefore seeks to address the deficiency in the global prosecutions of individual corruption and fill a substantial gap that is not within the jurisdictional purview of the ICC.   

Grand corruption 

While there is no internationally agreed definition of grand corruption, the core elements of misuse or abuse of high-level power, large-scale and/or large sums of money and harmful consequences, are at the core of this term. 

Definitions used by bodies such as the UN Office on Drugs and Crime focus on criminal offences listed in existing anti-corruption conventions – including bribery, embezzlement, money laundering and other corruption offences – are likely to be utilised. 

It is widely believed that the ICC would not be the correct forum to try grand corruption cases, and that the current international and domestic corruption frameworks are not adequate as matters stand.

The ICC has a limited budget of $170mn, and issues concerning lack of due process, efficacy, efficiency and independence have all been levelled against the court, which has only heard 31 cases and secured 10 convictions since its inception.  

Amending the Rome Statute to expand the ICC’s jurisdiction over grand corruption offences – in the unlikely event that this were to receive sufficient political support from the 123 state parties to the Rome Statute – could serve to destabilise the existing work of the court.  

Outside the ICC, international treaties directly aimed at tackling corruption, including the UN Convention against Corruption – the only legally binding international anti-corruption multilateral treaty, which entered into force in 2005 – do not offer a robust corruption enforcement mechanism either.  

One perceived weakness in the UNCAC is that state parties tend to focus on implementation of the convention at the national level rather than enforcement, with a weak, intergovernmental, peer-monitoring mechanism in place. Moreover, anticorruption agencies, first given recognition by the UNCAC, are often ineffective in kleptocratic regimes in circumstances where political influence is exercised over the judiciary and law enforcement.  

Advantages of an IACC

US judge Mark Wolf, one of the leading proponents of the establishment of an IACC and chair of the non-profit Integrity Initiatives International, which has led the campaign for the establishment of an IACC, has suggested that an IACC could afford an unbiased platform in which to consider corruption matters.  

Wolf has urged that an IACC would impose a higher authority on domestic anti-corruption frameworks and judicial systems, and provide a means of extraterritorial prosecution and punishment of countries that are unwilling or unable to enforce their own laws against powerful corrupt actors.

Perhaps most controversially, it has also been suggested that the activities of national anti-corruption agencies – including anti-corruption courts – would come within the purview of the IACC if they are not operating genuinely, providing the IACC with an additional monitoring function.

The future 

Once the IACC Treaty Committee has produced a draft IACC treaty, this will be considered by interested governments and civil society actors. A wider consultation will follow. 

However, the IACC will remain only an aspiration unless and until there is sufficient political will to ratify a treaty creating the necessary international framework. This would present a significant potential hurdle given the current climate of state reluctance to divest power to international bodies.  

It is clear that without a radical intervention in the existing anticorruption enforcement landscape, trillions of dollars will continue to be lost to corrupt practices each year, and the global community will continue to pay the price.

Maria Cronin is a partner, Craig Hogg is an associate, and Charlotte Dormon is a trainee solicitor at Peters & Peters