The World Needs an International
Anti-Corruption Court

Mark L. Wolf

Astratto: 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 corrup-
zione, 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 Dædalus demon-

strate, there is a growing international understand-
ing that more effective means are needed to combat
corruption, particularly what is coming to be called
“grand corruption” or “kleptocracy.” Grand corrup-
tion is the abuse of public office for private gain by a
nation’s leaders. It flourishes in many countries be-
cause of a failure to enforce existing criminal statutes
prohibiting bribery, money laundering, and the mis-
appropriation of national resources. Impunity exists
because corrupt leaders control the police, the pros-
ecutors, 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 propo-
sition that “the corrupt should be pursued and pun-
ished.”2 The Declaration emphasized the “centrali-
ty” of the United Nations Convention Against Cor-
ruption (uncac), in which 183 countries pledged to
enact laws criminalizing corruption and to enforce

© 2018 by Mark L. Wolf
doi:10.1162/DAED_ a_00507

mark l. wolf is a Senior Judge
of the United States District Court
for the District of Massachusetts
and Chair of Integrity Initiatives
Internazionale. Prior to his appoint-
ment in 1985, he was a Special As-
sistant to the United States Attor-
ney General in the aftermath of
Watergate and the chief federal
prosecutor of public corruption
in Massachusetts.

144

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them even against their nation’s leaders.3
Implicitly recognizing that existing institu-
tions and efforts have not been adequate,
the participating governments commit-
ted themselves to “exploring innovative
solutions” to combat corruption.4 An In-
ternational 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 viola-
tions of human rights.5 The absence of
risk of punishment, particularly imprison-
ment, contributes greatly to the pervasive-
ness and persistence of grand corruption.
The United States provides a model for a
new international approach to creating the
crucial, credible threat that corrupt lead-
ers will be punished for their crimes. Pub-
lic corruption exists in the United States.
Officials–most often state and local offi-
cials–sometimes abuse their public offic-
es for personal gain. Tuttavia, in contrast
to many other nations, the United States
has been serious about investigating, pros-
ecuting, and punishing powerful, corrupt
public officials.

As a federal judge, In 2011, I sentenced for-
mer 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 re- vealed 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–prose-
cutors and the Federal Bureau of Investi-
gation then continued the investigation.
They found hundreds of thousands of dol-
lars had also been paid to a friend of the
Speaker. When DiMasi was charged in fed-

eral court, the case was randomly assigned
to me. A jury found DiMasi guilty and I de-
cided the sentence.

As the DiMasi case illustrates, the Unit-
ed States does not rely on elected state dis-
trict attorneys to investigate and prosecute
corrupt state and local officials because
they are often part of the political estab-
lishment that must be challenged and, In
any event, typically lack the necessary legal
authority, expertise, and resources. Nel
stati Uniti, independent media often
expose corruption. Federal investigators
are authorized to conduct undercover op-
erations and secretly record conversations,
and are adept at unraveling complicated fi-
nancial transactions. Federal prosecutors
are capable of trying complex cases suc-
cessfully before impartial judges and ju-
ries. Di conseguenza, public officials convict-
ed of corruption regularly receive serious
sentences, which have the potential to de-
ter others and to create a political climate
in which candidates dedicated to govern-
ing honestly are elected.

Tuttavia, in countries in which grand
corruption flourishes, leaders control the
media and do not permit their own crim-
inal activity to be exposed. In many coun-
tries, exemplified by Mexico, Malta, Slo-
vakia, Turkey, and Russia, independent
investigative journalists are often threat-
ened, imprisoned, and even killed. There
are no fair elections that would allow the
replacement of corrupt leaders, in part
because their political campaigns are fre-
quently financed by the interests that bribe
them. Because those leaders control pros-
ecutors and judges, they are able to oper-
ate with impunity.

Therefore, an iacc is needed for the ex-
traterritorial prosecution and punishment
of corrupt leaders of countries that are un-
willing or unable to enforce their own laws
against powerful offenders. The interna-
tional consequences of grand corruption
justify the creation of an iacc, separate

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145

147 (3) Summer 2018Mark L. Wolf

from but similar to the International Crim-
inal 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 re-
gions lose ten times more to corruption
than they receive in foreign aid.7 Illicit
outflows of funds that developing coun-
tries 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 A 2008.9
Russia’s leaders evidently contribute a
great deal to the illicit capital that leaves
the country. In 2016, a massive leak of doc-
uments known as the Panama Papers re-
vealed that close associates of President
Vladimir Putin moved $2 billion, in trans- actions involving as much as $200 million
at a time, through international banks and
companies created to mask their true ben-
eficial owners.10 Putin’s closest friend, UN
cellist who had long claimed he was not
wealthy, was revealed to have almost £19
million in a Swiss bank, as well as invest-
ments in numerous Russian and offshore
entities, including a 3.9 percent share of a
Russian bank with assets of almost $11 bil- lion.11 In 2017, it was revealed that Russian Prime Minister Dimitri Medvedev had ac- cumulated 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 ex-
clusively economic. Grand corruption also
breeds constituents for terrorists. Many
supporters of the Taliban in Afghanistan
and of Boko Haram in Nigeria are not reli-
gious fanatics. Piuttosto, they are angry peo-
ple attracted to organizations that have po-
sitioned themselves as prime opponents

of their nation’s corrupt leaders.13 At the
same time, corruption–especially grand
corruption–makes it difficult for govern-
ments to combat terrorism because funds
intended for that purpose are regularly em-
bezzled or misspent. Per esempio, accord-
ing 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 securi-
ty equipment, which was substandard and
delivered at inflated prices or, in some cas-
es, not delivered at all.14

Inoltre, grand corruption is closely
correlated with the worst abuses of human
rights. As then–United Nations High Com-
missioner 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, E, 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, Tuttavia, were eventually found in
the bank accounts of health officials re-
sponsible for administering the relief ef-
fort.16 Angola claims the highest mortali-
ty 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 corrup- tion is destabilizing many countries and in the process creating grave threats to international peace and security. People around the world, particularly young peo- ple, no longer accept grand corruption as an inevitable fact of life. The ostentatious corruption of President of Ukraine Vik- tor Yanukovich was a major cause of the 2014 Maidan protests that drove him out 146 l D o w n o a d e d f r o m h t t p : / / d i r e c t . m i t . / e d u d a e d a r t i c e – p d / l f / / / / 1 4 7 3 1 4 4 1 8 3 1 1 3 6 d a e d _ a _ 0 0 5 0 7 p d . / f b y g u e s t t o n 0 9 S e p e m b e r 2 0 2 3 Dædalus, the Journal of the American Academy of Arts & SciencesThe World Needs an International Anti-Corrup-tion Court of office and to Russia. The flagrant illic- it wealth of Hosni Mubarak of Egypt and Ben Ali in Tunisia triggered uprisings in those countries. The ousting of Yanukovich and the en- suing Russian invasion of Crimea badly damaged the United States and European Union’s relationship with Russia, impair- ing their ability to cooperate on vital secu- rity 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 il- lustrate, grand corruption creates diffi- cult 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 lon- ger just a domestic concern.”18 Grand corruption does not thrive be- cause of a lack of laws. As indicated earlier, 183 countries are parties to uncac. Almost all of them have enacted the required stat- utes criminalizing bribery, money launder- ing, and misappropriation of national re- fonti. Parties to the Convention also have an international legal obligation to enforce those laws against corrupt lead- ers. Tuttavia, as explained earlier, many countries do not hold corrupt leaders ac- countable because those very leaders con- trol every element of the administration of justice. Kleptocrats enjoy impunity be- cause they are able to prevent the honest, effective investigation and prosecution of their colleagues, their friends, their fami- lies, and themselves. Again, Russia is illustrative. In 2008 E 2010, rispettivamente, the multinational cor- porations Siemens ag and Daimler ag ad- mitted, in prosecutions in New York for vi- olating 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 coun- tries.19 The fcpa authorizes the prosecu- tion of companies and individuals that pay bribes, but not of the public officials who demand or receive them. In their plea bar- gains, Siemens and Daimler each agreed to cooperate in the prosecution of the Rus- sian officials they had bribed.20 The evi- dence, including the names of twelve offi- cials 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 pros- ecuted for taking a bribe from Siemens or Daimler.22 Instead, in countries ruled by klepto- crats, those who expose corruption are of- ten punished. Russian lawyer Sergei Mag- nitsky was probing the theft by Russian of- ficials of companies worth $230 million
from his client, Hermitage Capital, Quando
he was arrested for alleged tax fraud, tor-
tured, and denied medical care in pris-
SU, where he eventually died.23 Similar-
ly, Alexei Navalny, a political opponent of
Putin, has been repeatedly prosecuted af-
ter exposing corruption in Russia involv-
ing government-owned energy company
Gazprom, vtb Bank, Russia’s chief pros-
ecutor, and Medvedev, among others.24

Russia is not unique or, Infatti, unusual
in persecuting those who expose grand cor-
ruption. In 2016, Hisham Geneina, Egypt’s
“anticorruption czar,” revealed that en-
demic 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 pros- ecuted 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 Turk- ish banker was convicted in the same case for conspiracy to violate U.S. sanctions on Iran, and several Turkish officials Zarrab l D o w n o a d e d f r o m h t t p : / / d i r e c t . m i t . / e d u d a e d a r t i c e – p d / l f / / / / 1 4 7 3 1 4 4 1 8 3 1 1 3 6 d a e d _ a _ 0 0 5 0 7 p d / . f b y g u e s t t o n 0 9 S e p e m b e r 2 0 2 3 147 147 (3) Summer 2018Mark L. Wolf claims to have bribed are evading prose- cution, while being protected by Erdoğan in Turkey.29 One of the prosecution’s wit- nesses in the New York case was a former Turkish police officer who had been jailed in Turkey in retaliation for leading its in- vestigation 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. Tuttavia, those laws have been widely ig- nored. uncac’s monitoring mechanism is weak, and the international communi- ty has focused excessively on whether the statutes required by uncac have been en- acted 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 pan- el with diplomats from the United Nations and the European Union who praised Rus- sia because it had enacted the statutes re- quired by uncac. Citing substantial evi- dence of continuing grand corruption, I questioned whether the “progress” being praised was real or rather, like the proverbi- al “Potemkin village,” all façade and no sub- stance. The positive reaction to my remarks by the many Russians in the audience con- firmed that they were not fooled by the of- ficial charade that we had witnessed. While criminal laws that could punish and deter corrupt leaders are not being en- forced, there are other efforts being made to combat grand corruption. Tuttavia, 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 de- cade. Tuttavia, the fcpa only applies to companies that do business in the United States. Forty countries in the Organisation for Economic Co-operation and Develop- ment (oecd) Convention Against Bribery have undertaken to enact counterparts to the fcpa, but those statutes are rarely en- forced.32 Moreover, as explained earlier, the fcpa, and its counterparts as well, permit only the prosecution of individuals and or- ganizations that pay bribes, but not the pub- lic 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. Tuttavia, asset recovery is legally complex, forensi- cally difficult, and ponderously slow. For example, funds unlawfully obtained by former President Ferdinand Marcos were frozen in 1986 but not returned to the Phil- ippine government until 2004.34 Efforts to recover illicitly obtained assets from Mar- cos’s wife are still ongoing.35 In any event, even expedited asset recov- ery would not be effective in deterring high officials from engaging in criminal corrup- zione. At best, only a fraction of looted as- sets and bribes are ever recovered. For ex- ample, in a highly publicized case, the Unit- ed States alleged that Teodorin Obiang, son of the president and himself the second vice president of Equatorial Guinea, had corruptly received $100 million and laun-
dered it in the United States by, among oth-
er things, buying a mansion, sports cars,
and Michael Jackson memorabilia. Dopo
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 be- ing forced to return only a fraction of what they have illegally acquired. This is not suf- ficient to alter their corrupt conduct. 148 l D o w n o a d e d f r o m h t t p : / / d i r e c t . m i t . / e d u d a e d a r t i c e – p d / l f / / / / 1 4 7 3 1 4 4 1 8 3 1 1 3 6 d a e d _ a _ 0 0 5 0 7 p d / . f b y g u e s t t o n 0 9 S e p e m b e r 2 0 2 3 Dædalus, the Journal of the American Academy of Arts & SciencesThe World Needs an International Anti-Corrup-tion Court 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 ap- pealing 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 as- sets 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 internation- al community’s capacity to cooperate in in- vestigating the flow of the fruits of corrup- tion.37 These are worthy endeavors. How- ever, it should be recognized that greater transparency of beneficial ownership and improved ability to follow the money are not ends in themselves. Piuttosto, they are only means to discover evidence of crimi- nal 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 impos- ing prison sentences on powerful people. In 2002, the evils of genocide and other in- tolerable abuses of human rights led to the creation of the icc. The comparable con- sequences of grand corruption now justify the creation of an iacc. As indicated earli- er, the proposed iacc should be similar to but separate from the icc. There are prin- cipled 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 juris- diction over cases of grand corruption. Re- opening the statute in an effort to expand the court’s jurisdiction could lead instead to the demise of the icc. Obtaining evidence for potential pros- ecutions in the iacc would be challeng- ing. Tuttavia, an International Anti-Cor- ruption Coordination Centre was recent- ly 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 brib- ery of Russian officials illustrate, it would often be futile and, Infatti, foolish to rely on the countries in which the crimes were committed to prosecute them. An iacc is essential to realizing the potential of im- proved international investigations. Inoltre, after 9/11, the United States Treasury Department established an Office of Terrorism and Financial Intelligence, which has become expert in tracing sourc- es of terrorist financing. In view of the na- tional security implications of grand cor- ruption, robust use of its resources to de- velop 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 inde- pendent intergovernmental body that de- velops 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 effec- tively. Inoltre, the Court should be led by able and impartial international judges. Importantly, like the icc, the iacc should operate on the principle of complementar- ità. National courts would have primary ju- risdiction over crimes by corrupt leaders in their countries. The iacc could only exer- cise jurisdiction if a nation proved unwill- ing or unable to make good-faith efforts to investigate, prosecute, and punish its lead- ers and their accomplices for corruption. The iacc would therefore be a court of l D o w n o a d e d f r o m h t t p : / / d i r e c t . m i t . / e d u d a e d a r t i c e – p d / l f / / / / 1 4 7 3 1 4 4 1 8 3 1 1 3 6 d a e d _ a _ 0 0 5 0 7 p d . / f b y g u e s t t o n 0 9 S e p e m b e r 2 0 2 3 149 147 (3) Summer 2018Mark L. Wolf 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 comple- mentarity, the iacc would give countries a significant incentive to improve their ca- pacity to enforce their criminal laws, and to punish and deter corruption, especial- ly grand corruption. Study of abuses of hu- man 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 Span- ish prosecution of former dictator Augusto Pinochet, his arrest in London, and his sub- sequent trial in Chile is a prominent exam- ple 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 govern- ment, 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. Piuttosto, 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 coun- tries that join the Court but prove to be un- willing or unable to enforce their domes- tic anticorruption laws against them. The iacc should also have jurisdiction con- cerning leaders of countries that do not join the Court in certain circumstances. Per esempio, 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. Inoltre, the United Nations Security Council should be authorized to refer the leader of any country for prose- cution in the iacc, as it can refer for pros- ecution in the icc citizens of states that have not joined the court. Since I first proposed the iacc in two ar- ticles 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 vi- olate the sanctity of national sovereign- ty.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 viola- tion of national sovereignty, but rather a vindication of the will of its people. In any event, as grand corruption has substan- tial 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 ob- stacle to domestic enforcement. It is sometimes said that creating anoth- er court comparable to the icc, which costs about $160 million a year, would be too ex-
pensive. Tuttavia, corruption is estimat-
ed to cost trillions of dollars annually, E
grand corruption contributes greatly to
that cost. The iacc would reduce corrup-
tion and thus save many nations enormous
sums of money. Inoltre, 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 im-
posed by the iacc could be used to de-
fray, 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 nazioni
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 them-
selves from prosecution in the icc.

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Dædalus, the Journal of the American Academy of Arts & SciencesThe World Needs an International Anti-Corrup-tion Court

È, Tuttavia, 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 Su-
preme 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 or-
der. Therefore, he turned over the tapes of
conversations in the Oval Office concern-
ing crimes and cover-ups, and resigned in
disgrace instead.42

It is true that major powers on the Unit-
ed Nations Security Council have at times
blocked investigations of their allies, come
as China’s protection of North Korea. It
is also true that the icc has achieved only
five convictions, and all have been of Afri-
cans. Tuttavia, the icc has focused on Af-
rica for legitimate reasons. Thirty-three
African states joined the Court–the most
from any region; crimes against humani-
ty 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

Inoltre, the icc has been broaden-
ing its focus. In 2017, it conducted ten pre-
liminary examinations, only four of which
involved African countries. Ukraine, Co-
lombia, Iraq, and Afghanistan are among
the nations still being investigated.44 The
preliminary examination of icc member
Afghanistan could actually generate pros-
ecutions of United States and British na-
tionals if there is sufficient evidence that
they committed war crimes in Afghani-
stan, and their governments are shown to
have been unwilling to conduct genuine
investigations and make good-faith deci-
sions concerning whether to prosecute.

Some objections to the icc actually indi-
cate 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 kill-
ings of drug dealers and addicts. Allo stesso modo,
Russia denounced the icc after the Unit-
ed States and the United Kingdom urged
the court to investigate Russian bombings
in Syria.45

Perhaps one of the most significant ar-
guments in favor of the icc is that there is
increasing evidence that prosecutions of
human rights abuses in that court, anche
as in domestic courts, are deterring viola-
tions of human rights.46 As explained ear-
lier, the principle of complementarity pro-
vides an incentive to states to improve their
own institutions and efforts. icc investiga-
tions have already catalyzed reforms in the
Democratic Republic of the Congo, Sudan,
Guinea, Georgia, and Colombia.47 In ad-
dizione, there is evidence that both the for-
mer president of Colombia and the Revolu-
tionary Armed Forces of Colombia (farc)
rebels factored the possibility of icc pros-
ecution into their negotiations to end a
fifty-year civil war. 48 Such examples have
prompted some scholars to conclude that
icc investigations, indictments and convic-
tions or those triggered by complementarity
are likely to encourage actual or potential
perpetrators to reassess the risks of punish-
ment–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 corrup-
tion 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, Quando
perpetrators may view the ends as justify-
ing the means. In contrasto, grand corrup-
tion involves discretionary crimes of cal-
culation. When there is no risk of sanction

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147 (3) Summer 2018Mark L. Wolf

because the official controls all power to
prosecute and punish, there is nothing to
inhibit an avaricious leader from enriching
himself corruptly. Tuttavia, when the cred-
ible threat of extraterritorial prosecution
and imprisonment is established, the calcu-
lation–and the conduct–should change.
Finalmente, 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. Tuttavia, submitting to the
jurisdiction of the iacc could be made a re-
quirement of being a party to uncac and a
member of the World Trade Organization.
It could also be made a prerequisite for re-
ceiving bilateral foreign aid and loans from
the World Bank and other development or-
ganizations.

Trade agreements are another means of
promoting membership in the iacc. For
esempio, the recent Trans-Pacific Partner-
ship (tpp) has the “strongest anti-corrup-
tion and transparency standards of any
trade agreement,” according to the Office
of the U.S. Trade Representative.50 Among
other conditions, the tpp requires signa-
tories to become parties to uncac, and to
enact and enforce anticorruption laws.51 It
also creates a mechanism to sanction vi-
olations of those requirements.52 Unfor-
tunately, missing from the tpp sanctions
is accountability for failure to enforce the
tpp’s required anticorruption laws. How-
ever, joining the iacc could be a condition
for becoming party to major trade agree-
ments 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 al-
lies created courts to try Germans and Jap-
anese 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.
IL 1948 Convention on the Prevention
and Punishment of the Crime of Genocide
declared genocide to be a crime. Tuttavia,
for fifty years there was no forum for the
prosecution of individuals who commit-
ted genocide.

About twenty-five years ago, this defi-
ciency became obvious and urgent. Nel
wake of atrocities in the former Yugosla-
via and Rwanda, the United Nations Secu-
rity 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. UN
treaty was endorsed by 120 countries. IL
required sixty countries ratified the treaty
much sooner than expected and, only four
years later, the icc was established.54

IL 1997 Mine Ban Treaty provides an-
other model for how to establish the iacc.
This treaty emerged from the Internation-
al Campaign to Ban Landmines (icbl),
which was launched by six nongovern-
mental organizations (ngos) In 1992. IL
ngos partnered with a core group of coun-
tries, including Canada, Norway, Austria,
and South Africa, to conduct the campaign.
By 1997, a treaty had been signed by 122 na-
zioni, becoming binding law with unprec-
edented speed.55

As the leader of the icbl, Nobel Peace
Prize recipient Jody Williams, explained:
[IO]t is possible for ngos to put an issue . . . SU
the international agenda, [E] provoke ur-
gent actions by governments and others. . . . It
È [also] possible to work outside of tradition-
al diplomatic forums, practices, and meth-
ods and still achieve success multi-laterally.56

Williams’s view has been validated by
the International Campaign to Abolish Nu-

152

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Dædalus, the Journal of the American Academy of Arts & SciencesThe World Needs an International Anti-Corrup-tion Court

clear Weapons (ican). ican was formed
in Australia in 2007 to work for the adop-
tion of a convention to eliminate nucle-
ar 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
nazioni, including Austria and Canada. In
2017, a Treaty on the Prohibition of Nucle-
ar Weapons was adopted at the United Na-
tions by a vote of 122 A 1. While the treaty
is not supported by any of the states that
now have nuclear weapons, it reflects a sig-
nificant 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.
Tuttavia, it is a concept that many people
around the world find clear and compel-
ling. They now know that grand corrup-
tion is extremely expensive, creates con-

stituents for terrorists, is closely correlat-
ed with the worst abuses of human rights,
and is destabilizing many countries and the
mondo. They understand that something
new is needed to hold kleptocrats account-
able 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, In-
cluding the United Nations High Commis-
sioner for Human Rights and Nobel Peace
Prize recipient President Juan Manuel San-
tos, who made Colombia the first country
to endorse the iacc; leading ngos, come
as Transparency International, Global Wit-
ness, and Human Rights Watch; and cou-
rageous young people, including leaders of
the Maidan uprising in Ukraine.

In short, there is a growing legion of ad-
vocates for a simple idea with enormous
consequences: the iacc is urgently need-
ed to end impunity for corrupt leaders, E
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: Com-

munique,” May 12, 2016.

4 Ibid., para. 3.
5 Valerie Wright, “Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punish-
ment,” The Sentencing Project, novembre 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 Se-
verity: An Analysis of Recent Research (Oxford: Hart Publishing, 1999). See also Hyeran Jo and Beth
UN. Simmons, “Can the International Criminal Court Deter Atrocity?” University of Pennsyl-
vania 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, Svizzera: World Economic Forum, 2008), 2, https://www.unglobalcompact
.org/docs/issues_doc/Anti-Corruption/clean_business_is_good_business.pdf; and The World
Bank, “The Costs of Corruption,” April 8, 2004, http://go.worldbank.org/LJA29GHA80.

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147 (3) Summer 2018Mark L. Wolf

7 Dev Kar and Sarah Freitas, Illicit Financial Flows from Developing Countries over the Decade Ending 2009,
(Washington, D.C.: Global Financial Integrity, Dicembre 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 (Washing-
ton, D.C.: Global Financial Integrity, Dicembre 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 For-
tune," Il 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, Marzo 9, 2017.

13 Sarah Chayes, “Nigeria’s In-Your-Face Corruption May be Fueling Boko Haram Terrorism,” Los
Angeles Times, Gennaio 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, Marzo 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, Marzo 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,
Febbraio 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," Il New York Times, Marzo 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," Il New York Times, Marzo
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, Gennaio 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," Il New York Times, novembre

18, 2009, http://www.nytimes.com/2009/11/18/world/europe/18russia.html.

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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 Vasil-
yeva, “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, Luglio 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," Il New York Times,
Giugno 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, Giugno 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, novembre 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,
Gennaio 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, “Turkish
Officials Lash Out Against Bribery Claims in New York Trial,” voa news, novembre 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: Trans-
parency 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 Guard-
ian, Febbraio 15, 2008. bae was successfully prosecuted in the United States on charges relat-
ed to the fcpa and agreed to pay $450 million in penalties to the United States and Britain.
34 “Making a Hash of Finding the Cash,” The Economist, May 11, 2013, http://www.economist.com/
news/international/21577368-why-have-arab-countries-recovered-so-little-money-thought
-have-been-nabbed.

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 In-
ternational Anti-Corruption Court (iacc) to Mitigate Grand Corruption and Human Rights
Abuses, novembre 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," Il New York Times, April 3, 2016.

38 Geoff Dancy and Florencia Montal, “Unintended Positive Complementarity: Why Interna-
tional Criminal Court Investigations Increase Domestic Human Rights Prosecutions,” paper
presented at the American Society of International Law Research Forum, Chicago, Novem-
ber 6–8, 2014, and at The Impact and Effectiveness of the International Criminal Court Con-
ference, 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.: IL
Brookings Institution, 2014), https://www.brookings.edu/research/the-case-for-an-international

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147 (3) Summer 2018Mark L. Wolf

-anti-corruption-court/; and Mark L. Wolf, “Ending Global Corruption,” The Washington Post,
Luglio 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, ottobre 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 NOI. 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 NOI. 683 (1974).
43 Norimitsu Onishi, “South Africa Reverses Withdrawal from International Criminal Court,"
The New York Times, Marzo 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?” Fac-
ulty 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,
E 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.coalitionfor

theicc.org/about-coalition-0.

54 Daniel Donovan, “International Criminal Court: Successes and Failures,” International Policy Digest,
Marzo 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: Poten-
tial 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/.

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