Very little is certain about the coronavirus, and we are only judges, not prophets. However, we can confidently predict that the response to the pandemic will be a bonanza for kleptocrats — an opportunity for the corrupt leaders of many countries to further enrich themselves.
Governments are poised to provide trillions of dollars to counter the pandemic, without even the usual, often ineffective, safeguards to assure that the funds are properly spent. The coronavirus will, therefore, provide additional compelling proof that the world needs an International Anti-Corruption Court to punish and deter kleptocrats who enjoy impunity in the countries they rule.
Corruption has devastating consequences for human health. As the United Nations High Commissioner for Human Rights said in 2013: “Corruption kills. . . . The amount of 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.”
One-third of the funds allocated in 2014 by Sierra Leone to combat Ebola could not be accounted for, although some were found in the bank account of an individual involved in the effort. Similarly, the minister of health in the Democratic Republic of Congo was found to have embezzled more than $400,000 from that country’s Ebola response funds. In 2015, Saudi Arabia suspended contracts worth $266 million for the prevention of infection by the MERS virus because, due to corruption, the required work was not being done. About $176 million had already been spent.
The close connection between grand corruption and harm to human health is vividly demonstrated by the experience of Angola. President José Eduardo dos Santos, who held office for 38 years until 2017, made his daughter Isabel the head of the national oil company and the wealthiest woman in Africa — worth more than $2 billion. At the same time, Angola has had the highest percentage of children of any country who do not live to the age of 5. Despite Angola’s vast natural resources and wealth, more than half of the country’s population has no access to health care. There will be no treatment for them as the coronavirus hits Angola.
Grand corruption does not flourish because of a lack of laws. There are 187 nations party to the United Nations Convention Against Corruption. Almost all of them have laws prohibiting extortion, bribery, money laundering, and misappropriation of national resources. They also have an international obligation to enforce those laws against their corrupt leaders. However, kleptocrats enjoy impunity in their own countries because they control the administration of justice. They will not permit the prosecution and punishment of their collaborators and themselves.
Therefore, an IACC is essential to serve as a court of last resort, providing a forum for enforcing existing national laws, or new uniform international counterparts, against kleptocrats. The IACC would be staffed by expert investigators and receive evidence from private companies that are often employed to trace illicit assets. It would employ prosecutors experienced in developing and presenting international cases, and judges with the demonstrated ability to preside in complex criminal proceedings. In addition to incarcerating kleptocrats, it would recover the ill-gotten gains laundered in countries that join the IACC.
The IACC would operate on the principle of complementarity. This means that the IACC would exercise its authority to prosecute only if a country was found to be unable or unwilling to prosecute its leaders itself.
In essence, the IACC would assure that there is a court in which kleptocrats will be punished. Imprisonment of corrupt leaders will create opportunities for them to be replaced by honest officials who are dedicated to serving their citizens. It will also deter other kleptocrats tempted by greed to commit crimes of corruption. One of President dos Santos’s last acts before leaving office was to give immunity from prosecution to his family and himself, demonstrating that kleptocrats fear being punished and, therefore, are capable of being deterred.
The proposed IACC is gaining support at an accelerating rate. Colombia and Peru are leading a campaign to have the United Nations commit to creating the court at a 2021 special session on corruption. Other supporters include a Nobel Peace Prize laureate, members of the US Congress, leading nongovernmental organizations, and courageous young people whose indignation at grand corruption has ousted kleptocrats in Ukraine and other countries.
It is unfortunate that the IACC does not yet exist to deter kleptocrats from profiting from the coronavirus pandemic. When their crimes are eventually discovered, their impunity will prove to be intolerable and unsustainable. There is, therefore, reason to hope that one of the few positive things to emerge from the pandemic will be the creation of the IACC.
Richard J. Goldstone is a retired justice of the Constitutional Court of South Africa, the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, and a member of the board of Integrity Initiatives International. Mark L. Wolf is a Senior US District judge in Massachusetts and the chair of Integrity Initiatives International. The views expressed here are not those of the US Judiciary.