In 2023, Integrity Initiatives International (III) convened a treaty committee with drafting and advisory sub-committees to begin working on a statute to establish the International Anti-Corruption Court (IACCourt). This diverse group of jurists, lawyers, scholars, and anti-corruption experts come from South Africa, Nigeria, Cameroon, Mexico, Trinidad and Tobago, Brazil, Bangladesh, the Netherlands, Australia, New Zealand, the United States, and Canada. I chair the treaty committee, working closely with Maja Groff, a Canadian expert on drafting and negotiating treaties, who chairs the drafting and advisory sub-committees. The committee has already held three sessions hosted by The New Institute Foundation in Hamburg, Germany.
Following our latest meeting, at the end of August 2024, the first draft of the statute is nearing completion, which we will share with interested government officials and leading civil society organisations – such as Good Governance Africa (GGA) – across Africa and internationally. These consultations aim to refine the statute, which will then be used in a call to action by the international coalition for governments to sign and ratify the treaty.
Two novel provisions distinguish the IACCourt draft statute from others before it. The first innovation is that the court will have two divisions – a criminal and an assets division.
The criminal division will investigate and prosecute kleptocrats and other high officials who have plundered their countries, as well as those complicit with them, who facilitate the plunder and the laundering of stolen assets. This will include bankers, lawyers, real estate agents, and other providers. The IACCourt will also have the authority to freeze and seize laundered stolen assets.
The assets division will be concerned with disputes over stolen assets, whether at the instance of governments or private citizens. It will hold and control the assets until they can be returned to their real owners, the people of the countries that have been plundered. This dual structure will ensure a comprehensive approach to both punitive and restorative justice.
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Secondly, the IACCourt will be the first international criminal court to allow juristic persons, such as corporations, to be amenable to the court’s jurisdiction. This innovation is crucial, considering the role played by corporations in laundering assets. Money launderers have used shell companies to hide their ill-gotten gains for years, and bankers and other corporations have facilitated and hidden the laundering of those illicit assets. By stripping away the juristic mask that conceals those assets, the IACCourt seeks to dismantle systemic enablers of corruption.
III also recognises the crucial role played by whistleblowers in bringing to public attention the huge corruption in public and private enterprises. The draft statute will have provisions to adequately protect those who provide such information to the IACCourt.
Government officials are concerned about the way the court will operate and whether it will be able to function efficiently and effectively. III believes these concerns can best be resolved by providing interested governments with a draft statute of the court for discussion. This will help them get to grips with the way the IACCourt will operate.
The treaty, joined by a sufficient number of governments to make it a viable and functioning institution, offers a practical way to establish the IACCourt. The European Parliament passed a resolution supporting the court in 2023, and six governments have expressed public support for it: Canada, the Netherlands, Nigeria, Moldova, Colombia, and Ecuador. Several others have expressed interest in the court, including the United Kingdom (UK).
In my opinion, it would need the support of about 30 states to make the IACCourt a viable institution. They would necessarily have to include states in which illicit money is habitually laundered. These include the UK and its overseas territories, plus Singapore, the United Arab Emirates (UAE), and Panama. There are several others.
The crimes defined in the United Nations Convention Against Corruption (UNCAC) have already been agreed upon almost universally by the 186 states that have ratified the convention. These crimes will form the basis of the IACCourt’s criminal jurisdiction. In addition, the court will be complementary; it will not be triggered if the criminal conduct in question is being investigated in good faith by domestic authorities and courts with relevant jurisdiction over such crimes.
The need for the IACCourt is explained in the article by Judge Mark Wolf in this publication. That it is in the interests of many governments to support a treaty establishing the court cannot be doubted. The challenge is to convince enough countries that such a court is a viable and efficient instrument for curbing corruption committed by high officials and those who collude with them; and, importantly, that the court will be able to seize and repatriate the huge amount of assets stolen from the people of victim countries.
Justice Richard Goldstone
Justice Richard Goldstoneis a retired Justice of the Constitutional Court of South Africa, to which he was appointed by Nelson Mandela in 1994. He is the former Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda.
